Unemployment
	 — 
	Question

Lord Roberts of Conwy: To ask Her Majesty's Government what is the latest quarterly figure for total unemployment in the United Kingdom; and what is the latest monthly total number of claimants of unemployment benefit.

Lord McKenzie of Luton: My Lords, in the quarter to December 2009, 2,457,000 people aged 16 and over were ILO unemployed. In January 2010, 1,635,600 people were claiming jobseeker's allowance.

Lord Roberts of Conwy: My Lords, welcome as the reduction of some 3,000 in the overall ILO figure is, does the Minister agree that it has to be seen in the context of a 12,000 reduction in the total number of people in employment and a fall of 37,000 in the number in full-time employment-which is, I think, a record high figure? Does he agree that those figures and the 23,500 rise in the number of claimants hardly suggest that we are well clear of the recession and in fact augur rather badly for economic growth and the Government's target of 1.25 per cent for this year, which is twice the EU forecast of 0.6 per cent?

Lord McKenzie of Luton: My Lords, I do not accept that it augurs badly for economic growth in this country. There are now clear signs that the position in the labour market is stabilising-redundancies have fallen back significantly since spring of last year, fewer people made new claims for jobseeker's allowance and the number of vacancies is also increasing. Indeed the number of people unemployed on the ILO definition is now close to flat and has, as the noble Lord identified, reduced a little. Although the claimant count rose in January, and there will always be variations from month to month, the number of people making a new claim-322,600-was the lowest figure for a year. There are still challenges ahead, which is why we must not hold back from the investment that the Government have put into a range of programmes. In particular, we must not divert resources from these programmes to inheritance tax cuts for the wealthy or, indeed, for the married couple's allowance.

Lord Campbell of Alloway: Does the noble Lord agree that the fundamental problem is not only how many are employed or not employed at the moment but how many will be employed in the future? Does not the fundamental question concern where our AAA rating is on the global finance markets? If that stands, employment stands.

Lord McKenzie of Luton: My Lords, of course employment is a very important issue. Before the recession we had the aspiration of an 80 per cent employment rate. As we have come through the recession, we have seen the first quarter of growth, at the end of last year, in a little while. We need to re-energise and refocus on making sure that we hit those employment targets, which is why I repeat that these things do not happen by chance; they happen because the Government have invested £5 billion in capacity for Jobcentre Plus for a range of measures to keep people in employment or to move them closer to the labour market.

Lord Soley: Does my noble friend agree that it is a mistake to sell our country short when, in fact, unemployment in this country is significantly lower, and has long been lower, than that of many of our European competitors? Can we also bear in mind that a 0.3 per cent growth rate is higher than even the best prediction, which was 0.2 per cent? Should we not be at least a little welcoming of the optimism that feeds and drives the British industry that keeps the jobs and investment going?

Lord McKenzie of Luton: Yes, my Lords; I very much agree with my noble friend. It is not just the growth rate at the end of last quarter: a number of surveys are showing improved confidence. He is right that if you look at the UK's unemployment rate in comparison with the rest of the world, we have an unemployment rate that is lower than the G7, EU and OECD averages. We are at 7.8 per cent on the ILO measure. Canada is at 8.3 per cent, Italy at 8.5 per cent, the US at 9.7 per cent, France at 10 per cent and Spain at 19.5 per cent.

Lord Taylor of Holbeach: My Lords, I am sure the Minister is aware that this question is about real jobs that will sustain a recovery. He also talks of investment at a time when the car scrappage scheme is ending. How many jobs does he think have been saved by the car scrappage scheme, and how many will be lost by its abandonment?

Lord McKenzie of Luton: My Lords, the car scrappage scheme was part of the fiscal stimulus that the UK economy has received-a fiscal stimulus which I think was opposed by the noble Lord's party. I do not have the data on the precise number of jobs attached to the scheme, but he is quite right that we need to be about sustaining jobs so that people have not only employment but jobs that are sustainable and in which they can grow and flourish. If he looks at the vacancies that came out in the recent report, he will also see that manufacturing showed an increase of something like 23 per cent on the quarter. That is a good sign as well.

Lord Oakeshott of Seagrove Bay: My Lords, does the noble Lord agree that we would not now be facing the need to make so many cuts, in jobs particularly, if all those who sat in this House and took the benefit of living in this country paid full British tax in this country?

Lord McKenzie of Luton: My Lords, I am a great believer in the sentiment that the noble Lord has expressed. The ability of people to sit in this House when they claim to be non-domiciled and are not treated as ordinarily resident and domiciled in this country is a huge mistake-one which I think and hope we will rectify soon.

The Countess of Mar: My Lords-

Lord Haskel: My Lords-

Noble Lords: Cross Bench!

Baroness Royall of Blaisdon: My Lords, we should hear from the Cross Benches.

The Countess of Mar: My Lords, can the noble Lord say what assessment he makes of women who would like a job but do not apply for jobseeker's allowance and do not register as unemployed simply because of the job situation?

Lord McKenzie of Luton: My Lords, I am not sure that we have much evidence for that particular assertion. As the noble Countess will recognise, because I think she was involved in our debates on the Welfare Reform Bill, there has been a lot of focus on helping people back into and closer to the labour market-particularly helping lone parents, most of whom are women-and on supporting them so that they can actually move into employment. If one looks at all the issues around poverty, one sees that the thing that makes the difference is people's employment opportunities.

Lord Davies of Coity: My Lords-

Lord Davies of Oldham: I am sorry, my Lords, we must move on.

Finance: Debt
	 — 
	Question

Baroness Gardner of Parkes: To ask Her Majesty's Government what action they plan to take to deal with unsolicited computer-generated telephone calls offering to resolve any and all debt and financial problems.

Lord Young of Norwood Green: My Lords, organisations that use recorded phone messages to promote a product or service are required by law to comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003. Regulation 19 requires the caller who leaves a recorded phone message to ensure that they have obtained prior consent. Where a consumer receives a recorded message that they have not agreed to, this is likely to be a breach of the regulations. In these circumstances, consumers are encouraged to report such calls for further investigation to the Information Commissioner's Office, as it has responsibility for the enforcement of the regulations.

Baroness Gardner of Parkes: I thank the Minister for that Answer. Is he aware that the citizens advice bureaux have drawn attention to the 9,500 new debt problems and 8,200 new benefit problems every working day? The latest call I received said, "You'll be able to work off 100 per cent of your debts in just 12 months. To see if you qualify to take advantage of this scheme and to have your entire debts written off then press 2 on your phone now". I get these calls several times a week. Does he agree that the danger is that vulnerable people will be taken in by that type of message, and that the Government should at least issue warnings about it?

Lord Young of Norwood Green: I agree with the noble Baroness. I, too, have had these calls, although I have not stayed on the line as long as she did-I have never got to the "press 2" bit. However, we share her concern about the situation. We realise that a significant number of people are struggling with their finances during the recession. Additional funds were poured into various funding activities: £10 million to support longer opening hours at 330 citizens advice bureaux; £5.8 million for the National Debtline to increase capacity levels on the helpline by 50 per cent, thereby enabling it to handle 220,000 calls a year; and £500,000 to develop a new self-help debt advice toolkit to empower people to negotiate with creditors and agree a repayment plan, thus freeing up more time for debt advisers to deal with people who are facing crisis debt problems.

Lord Razzall: My Lords, I shall slightly widen the noble Baroness's Question. I appreciate that this may be slightly above the Minister's pay grade, but will he undertake to ensure that during the election we do not have a repetition from the Labour Party of what happened last time, when I understand that many people received computer-generated telephone calls from John Prescott at 3.30 am?

Lord Young of Norwood Green: The noble Lord should remember the saying, "Let him who is without sin cast the first stone". In 2005, the ICO served enforcement notices against the Conservative Party and the SNP. In 2008, the ICO served an enforcement notice against the Liberal Democrats as they had breached the PECR by making unsolicited automated marketing calls to consumers who had not given their consent.

Lord Naseby: The noble Lord suggests that those who wish to complain should get hold of the Information Commissioner. Is it not about time that the Information Commissioner got off his backside and recognised that there are thousands of complaints out there already, and that he should do something about them?

Lord Young of Norwood Green: The Information Commissioner initially warns companies informally that he will initiate formal action unless they cease to make such calls, which is usually effective and removes the need for formal action. Since 2005, the ICO has issued five enforcement notices. As regards unsolicited marketing calls, as opposed to computer-generated live calls, you can use the telephone preference service, which should stop these calls. Fifteen million people have registered for that facility and the number is growing.

Lord Acton: Is my noble friend aware that I now live in mortal terror of getting an unsolicited computer telephone call from the noble Lord, Lord Razzall? Is there a publicity campaign to inform people about this admirable figure, the Information Commissioner?

Lord Young of Norwood Green: I thank my noble friend. I cannot do much about the terror in which he lives, but I suggest counselling. We are active in terms of the Government's other activities. The Ministry of Justice runs the Financial Inclusion Fund, the Financial Services Authority and Her Majesty's Treasury are progressing their financial capability money guidance pilots, and Communities and Local Government is providing more help for consumers in difficulties via the mortgage rescue scheme. A number of government schemes are in process and there is a lot of publicity.

Lord Hamilton of Epsom: Can the Minister tell us how many unsolicited calls the Treasury has had to help with its debt and financial problems?

Lord Young of Norwood Green: That information is not available to me.

Lord Brooke of Sutton Mandeville: Does the Minister recall the opening sentence of Cakes and Ale by W Somerset Maugham to the effect that, when you have been out and on returning home discover that somebody has called you and that it is extremely important that you should call them back, you generally find when you do call them back that it is more important to them than it is to you?

Lord Young of Norwood Green: I thank the noble Lord. As a Somerset Maugham fan myself, I could not remember that particular quote. In today's circumstances, you would think "caller beware" before you answer all those calls.

Sure Start
	 — 
	Question

Baroness Massey of Darwen: To ask Her Majesty's Government how many Sure Start programmes were set up during the past year; and how they will be evaluated.

Baroness Morgan of Drefelin: My Lords,during the period from January to December 2009, 472 Sure Start children's centres were designated. The DCSF's guidance to children's centre leaders and local authorities contains an expectation that they should evaluate the effectiveness of their services. The national evaluation of Sure Start started in 2001 and last reported in 2008. The DCSF has recently commissioned an evaluation of the implementation and impact of the full range of children's centres; its first report is expected in late 2010.

Baroness Massey of Darwen: My Lords, I thank my noble friend for that positive reply. Can she say how many Sure Start centres now exist in total and how the question of outreach to the most vulnerable groups is working? There has been concern about this-has it been addressed?

Baroness Morgan of Drefelin: My Lords, we are on track to achieve our target of 3,500 Sure Start centres by this month; that is one in every community-a stark contrast to 1997, when there was none. The Government's vision, built on experience and evaluation so far, is for outreach to be very much part of the work of Sure Start centres. It is in stark contrast to the policy of the party opposite, which I understand is committed to exchanging the work of outreach workers in favour of closing down some Sure Start centres; I think the figure is something like one in four.

Baroness Walmsley: In view of the announcements today about secondary school choices, can the Minister say what percentage of toddlers got their first choice of Sure Start centre? Does she agree that parents vote with their feet when it comes to evaluating Sure Start centres and that the best centres are very oversubscribed by the middle classes? What are the Government doing to ensure that the most vulnerable people get those places?

Baroness Morgan of Drefelin: My Lords, my view is that 100 per cent of parents have been able to achieve their choice of Sure Start centre in their community with this Government's vision because we are committed to ensuring that there is a Sure Start children's centre in every community. That is a commitment to a universal service, which was achieved when we created a statutory footing for Sure Start centres in the ASCL Bill. We must ensure that we really drive through our commitment to Sure Start centres by ensuring that there is outreach to disadvantaged communities; we learnt at the start that many of the Sure Start centres in the disadvantaged communities were very conscious of excluding parents who were on their borders. That is not necessary. We also know that Sure Start centres in more advantaged areas are used by children from disadvantaged areas, and that is why it is so important that we have a universal service.

Baroness Verma: My Lords, perhaps I may ask for clarification. The Conservative Party supports Sure Start centres but it wants to ensure that they respond to the needs of the most vulnerable and poorest families in this country. Following on from the Question of the noble Baroness, Lady Massey, what has happened to the extra £79 million for outreach workers? Has it been used and are there such workers in all Sure Start centres?

Baroness Morgan of Drefelin: Let us be absolutely clear about the Conservative Party's commitment to Sure Start centres. As I understand it, it is about taking funding from Sure Start and putting it into other priorities. The shadow Chancellor could not confirm that that was not the case, so let us be clear about Conservative policy here.

Baroness Hollis of Heigham: My Lords, I understand the sentiment behind my noble friend's Question but is it not the case that if Sure Start schemes were confined primarily to the vulnerable and the disadvantaged, they would become stigmatised and, as a result, children in those groups would not use them?

Baroness Morgan of Drefelin: I absolutely agree with my noble friend. We have to recognise that Sure Start centres have a great deal to offer every single community. By offering a universal service, we support families from both disadvantaged and affluent backgrounds, but it is the best way of reaching those who would not otherwise access these services.

The Earl of Listowel: My Lords, I welcome what the Minister has said but does she not agree that, if we are to answer industry's need for numerate and literate young people, we must invest earlier than we do? Is it not counterproductive to invest so much in getting young people in the 14 to 19 age range to read, write and count properly when we know that good early years-pre-school and primary-education will be much more effective in ensuring the workforce that we need?

Baroness Morgan of Drefelin: I believe that the noble Earl's analysis is right. We on this side of the House are saying that we have to invest in Sure Start and that it is not an either/or situation. We see the benefits of investing in Sure Start come through the system, with children who are more ready for school and who display better behaviour, and parents who are more equipped to cope with the challenges of a modern society. We see these benefits coming through the system and, in time, with another Labour Government we will see a much better outcome for 16 to 19 year-olds too.

Baroness Maddock: My Lords, is the Minister confident that Sure Start coverage is as she describes in rural areas, where population density is much lower? I do not believe that the ability to access Sure Start is as good in those areas as she has led us to believe.

Baroness Morgan of Drefelin: The noble Baroness touches on a very important point. As we have made clear in the guidance that we have made available, we have to be careful that in rural areas local authorities have the flexibility to look at different kinds of models. Essentially, a Sure Start centre in every community must be the aspiration but, if a local authority can find a better way of meeting the needs of its service users in a rural community, we have to listen to that.

Baroness Byford: My Lords, will the Minister define "community" for us all, and will she say how many Sure Start programmes are based in rural areas?

Baroness Morgan of Drefelin: My Lords, I shall have to write to the noble Baroness about the number of Sure Start centres in rural areas. However, it is clear that we know what a community is. It is a place where a reasonable number of parents have reasonable access to a children's centre, and you will also find there a community school, a children's centre and possibly a walk-in centre. These are all facilities that a Labour Government are committed to promoting.

Baroness Pitkeathley: My Lords, in view of the great success that there has clearly been in recruiting staff at Sure Start centres, including outreach workers, are there any lessons to be drawn about recruiting social services and social care staff in general?

Baroness Morgan of Drefelin: My Lords, we must always be committed to learning the lessons. We know that there are significant pressures on children's social services-I think that that is what the noble Baroness is referring to. Working in a Sure Start children's centre can be a very positive experience and we should be learning from the training that is made available from the interaction with parents and making sure that those lessons are learnt across children's services.

St David's Day
	 — 
	Question

Lord Roberts of Llandudno: To ask Her Majesty's Government what consultations they have held about declaring 1 March, St David's Day, an official Bank Holiday in Wales.

Lord Davies of Oldham: My Lords, I begin by wishing the noble Lord, Lord Roberts, and our compatriots a very happy St David's Day. No such consultation has taken place, but I must stress that, for the people of Wales and for Welsh people all over the world, the absence of a public holiday on St David's Day has not diminished the appetite to celebrate 1 March in style and with pride.

Lord Roberts of Llandudno: My Lords, I think that I thank the Minister for that Answer on Dydd Gwyl Dewi, which is Welsh for St David's Day. However, we have almost without exception the fewest public holidays of all the countries of the European Union. When we look to have a new public holiday, could we give priority to the national days of Scotland, Wales and England? St Patrick's Day is already a bank holiday in Ireland, of course. Will the Minister initiate consultation soon with the devolved Administrations so that, when another opportunity comes to have a public holiday, we can move immediately, without any hesitation, to ensure that Wales, Scotland and England have their national holidays?

Lord Davies of Oldham: My Lords, bank holidays have to be established on the basis of consultation because they reflect the work-life balance, on which this Government have a proud record. It will be noted that we now have five and a half weeks of statutory entitlement. I bring to the attention of the noble Lord the fact that any decision on St Patrick's Day is for a totally different country and Administration. As far as Britain is concerned, the position is clear: the Scots decided to opt for St Andrew's Day; the Welsh Assembly Government have not as yet made a bid in the present programme for a public holiday for St David's Day. If such a bid comes forward, we will consider it.

Lord Davies of Coity: My Lords, does my noble friend agree that the noble Lords, Lord Roberts of Llandudno and Lord Roberts of Conwy, rather than being concerned with the unemployment figures and bank holidays on St David's Day, would be better advised to look at the latest opinion polls?

Lord Davies of Oldham: My Lords, I thought that there was cause for much celebration today, but for some of us opinion polls are always attended to with some degree of scepticism and doubt. If there was cause for celebration in some parts of the House, that probably took place earlier than today.

Lord Wright of Richmond: My Lords, is the Minister aware that the noble Lord, Lord Roberts of Llandudno, might be well advised to have a holiday in the Lebanon? When I was posted in Beirut, many years ago, it was reputed to have more national and religious holidays than any other country in the world.

Lord Davies of Oldham: My Lords, the UK does not compare well on bank holidays with other countries-the noble Lord draws the attention of the House to a particular illustration-but we do not do badly on holidays as a whole in comparison with others.

Lord Howell of Guildford: My Lords, if there are to be more holidays in the land of my fathers, which I personally would welcome, might it be wiser not to make them bank holidays? Most of us feel that holidays are not the appropriate thing for the banks at the moment; they should be working rather harder to pay us back all the money that we have lent them.

Lord Davies of Oldham: That is a very interesting point. Almost the only thing that the banks are associated with favourably at the moment is bank holidays, but we ought to bear in mind the point that the noble Lord has made. I think that the noble Lord, Lord Roberts, is emphasising that there is an enthusiasm in Wales and among Welsh people everywhere to celebrate 1 March, as I think the Welsh do.

Lord Avebury: My Lords-

Lord Anderson of Swansea: My Lords-

Lord McColl of Dulwich: My Lords-

Baroness Royall of Blaisdon: My Lords, I think that we should hear from the Liberal Democrats.

Lord Avebury: My Lords, is the Minister aware that in the Bank Holidays Act 1871 it was wisely provided that additional days could be added to the original list by royal proclamation? This power was used to add St Patrick's Day in 2003 and the successor to the original Act was used to add St Andrew's Day in 2007. Does the Minister think that, after all this time, it would at least be worth consulting the people of Wales on whether they would like a national day to be celebrated by a bank holiday in accordance with the practice elsewhere in these islands?

Lord Davies of Oldham: My Lords, I emphasise, with the most apposite example, that St Andrew's Day is not an additional bank holiday; it is a substitute for another holiday in Scotland. If the Welsh Assembly chose to go down that route, we would look at the issue very seriously, but in the bid for legislation this year the Welsh did not ask for that power.

Lord Elystan-Morgan: My Lords, may I endorse, with great pleasure and with humility, the candidature of St David? He was a British-born saint who lived all his life among his people, which is a record not shared by all his saintly colleagues.

Lord Davies of Oldham: The history of the saints throws up some interesting illustrations, but I am happy to testify to the authenticity of St David.

Lord Anderson of Swansea: My Lords, if we believe in devolution, should this decision not sensibly be left to the National Assembly?

Lord Davies of Oldham: My Lords, it is in one sense but, at the moment, this requires primary legislation. If the Welsh want to make changes, they need to make representations for the British Government to consider against the background of the other factors involved, which I have mentioned. I am merely saying that the Welsh Assembly Government have not made a submission thus far.

Third Parties (Rights against Insurers) Bill [HL]
	 — 
	Third Reading

Bill passed and sent to the Commons.

Personal Care at Home Bill

Main Bill Page
	Copy of the Bill
	Explanatory Bill
	Amendments

Committee (2nd Day)

Clause 1 : Free provision of personal care at home
	Amendment 21
	 Moved by Earl Howe
	21: Clause 1, page 1, line 22, at end insert-
	"( ) make provision for those persons eligible for, or in receipt of, the free provision who are also deemed eligible for NHS continuing care"

Earl Howe: I have tabled this amendment to ask the Minister questions about the potential for dispute in the way that the provisions of the Bill are implemented. My main questions centre on the interface between personal care at home and NHS continuing care.
	The number of people currently in receipt of continuing care from the NHS is roughly 45,000. It is likely, although I confess that I have no figures to support this, that a high proportion of those people will be assessed as being in critical need of personal care under the FACS-fair access to care services-definition. The FACS guidelines, which are currently the subject of revision, set out the criteria for determining a person's level of need, the four categories being "low", "moderate", "substantial" and "critical". As we know, the Bill is designed to cover only those in critical need, and then only those who require substantial help with four or more activities of daily living.
	The Minister will know that NHS continuing care has provided a field day for lawyers over the past 10 years. A senior lawyer described it to me the other day as a sub-specialisation in the field of litigation, such are the quantity of challenges brought by patients, and also very often the families of patients, against decisions taken by the NHS about eligibility. With this Bill, we have in prospect another dimension of this type of challenge, one in which the NHS itself is likely to argue that at least some of the burden of looking after people in their own homes should be borne by local authorities. The assessment process is set to become even more fraught than it has been up to now. We can envisage local authorities resisting the idea of providing someone with free personal care at home and directing them instead towards residential accommodation with additional nursing, while at the same time the PCT will resist that idea and argue in favour of personal care in the home with little or no nursing element. Somehow, there will have to be protocols to deal with this type of situation.
	Of course, we all, I am sure, subscribe to the idea of pooled budgets, but that will not of itself get round the potential for disputes. If we look at the draft regulations and at the list of qualifying services that are to be the basis for determining whether someone's needs are critical, we see that they include,
	"eating or drinking (including the administration of parenteral nutrition)".
	I am surprised to see the administration of parenteral nutrition classified as personal care. In hospital, parenteral nutrition is almost invariably overseen by a qualified nurse as it is classed as a form of medical treatment. Similarly, the list includes washing and bathing. It would be helpful if the Minister could say whether this means we have finally overcome the arcane distinction between an NHS bath and a social services bath. If we have, I am quite surprised, because underneath that example of what sounds like a daft distinction lies a substantive issue in terms of the degree of care and skill required to give a bath to one patient as compared to another.
	Similarly, oral care is included as a qualifying service for personal care. Certainly, some oral care will be quite straightforward and will not require a nurse, but will this always be the case where a person has some medical complication relating to their mouth, gums or teeth? Equally, in the list of so-called activities of daily living, we find management of treatment which consists of a prescription-only medicine. I agree that a care worker is perfectly capable of reminding a frail, elderly person that it is time to take their medicine. That is not a nursing task. But things become more difficult if we imagine a confused elderly person who takes a different combination of different pills at different times of the day. The level of responsibility required in a care worker to ensure that the right number of pills are taken at the right times of the day is considerable. This is the kind of thing which, in hospital, only a qualified nurse would do. I worry that we may be creating a potential minefield here, in terms of where responsibilities will lie, as between the NHS and local authorities. In many ways, it is helpful to define in black and white what we mean by personal care, but the other side of the coin is the scope that is created for arguing over what is meant by the various terms listed in the regulations. It is on that point, in particular, that I should be glad of any reassurance from the Minister. I beg to move.

Baroness Barker: My Lords, my Amendment 23, which is grouped with Amendment 21, was tabled for exactly the same purpose as that of the noble Earl.
	After I tabled it last week, some individuals in my other working life, who did not know who I was and did not know that I had anything to do with your Lordships' House, happened to have a conversation which I simply sat in on and observed. They were all workers for a voluntary organisation who have had experience of assisting older people with the process of assessment for continuing care. They were trying to establish between themselves-they came from three different areas-whether there was any consistency at all in the decision-making processes to which they had been party.
	What set my mind particularly to this matter was the description of an elderly man who has multi-infarct dementia, is blind, cannot walk, is doubly incontinent, has lost the ability to swallow and therefore has to have all his food made for him and pureéd. He is not eligible for NHS continuing care. That sparked a discussion about what NHS continuing care is. I do not know whether this is right, but I am interested in the point made by the noble Earl and in these care workers' distinct impression that only when someone has to be peg-fed do they have a remote chance of being considered for NHS continuing care and that that must be but one of their conditions; there must be others, too. I, too, want to know how the criteria for this care, which will be the new revised version of FACS, will work alongside NHS continuing care. Will the Minister tell me for how long on average the 45,000 people who receive NHS continuing care have received it? I am trying to gauge how ill someone has to be to be eligible under the criteria.
	The Bill is an amendment to the Community Care (Delayed Discharges etc.) Act. So far as I can see in all the debates in another place and here, one issue has not been the subject of any discussion at all, which is rather surprising. When that Act was introduced back in 2003, it introduced intermediate care-an entitlement of six weeks' intensive care which elderly people are supposed to be given to enable them to be discharged from hospital when their medical needs have been attended to. The Bill was introduced with £900 million of funding behind it. I have a series of questions to ask the Minister today. I warned her that I would because it is quite important that we do so.
	When the Act went through Parliament, I asked a series of questions about how it would work. The noble Lord, Lord Hunt of Kings Heath, gave the assurance that there would be a target; by March 2002, at least 220,000 people would be in receipt of intermediate care, over and above the baseline for 1999. The figures that I have been able to find show that, by the end of 2003, 143,000 people were being given intermediate care. How many people-in the last year for which there are figures-are in receipt of intermediate care, and how many of them received it at home? I ask that for two reasons. First, the term "intermediate care" seems to have disappeared somewhat. I am beginning to pick up on cases in which carers are being told that their relatives are not eligible for intermediate care because they have dementia and so there is no possibility of them improving. There are specific criteria for eligibility for intermediate care, and the Bill proposes three different assessments of a person to determine what sort of care they are eligible for, where they should receive it and for how long. I really would like the Minister to answer this in some detail.
	I am concerned that people are going to find themselves deemed to have met one of the FACS critical criteria, but are not deemed to need assistance with daily living because they have a carer to help them, and therefore they are going to be fobbed off. Is the decision support tool, about which the noble Baroness the Minister talked last week, going to have a consistency across all three of these assessments-NHS continuing care, intermediate care and personal care at home? Further to that, can she say when the fast-track process will be brought into play?
	Finally, to pick up on the point made by the noble Earl about the potential for local authorities to challenge NHS continuing care decisions that may force people back on to the personal care at home regime, for which the NHS will not be liable to pay, can the noble Baroness say how many PCTs and local authorities have a named lead officer for NHS continuing healthcare funding issues? Increasingly there is the potential for older people and their carers to be stuck between PCTs and local authorities which are in dispute about eligibility. If cases such as the one that I just mentioned are deemed to be ineligible for NHS continuing care, we are into an area of decision-making that is going to be so fine that it is going to take a fair amount of experience on somebody's part to make those judgments with any kind of consistency and lack of bias, so that people are not unfairly dealt with and so that we do not set up yet another lawyers' charter.
	I am asking a very simple thing-how can the policy behind this Bill be implemented in such as way that it does not cause confusion times three, but instead provides clarity and consistency between three different instances of decision-making. I should very much welcome some guidance from the Minister on that.

Baroness Masham of Ilton: My Lords, the noble Earl has illustrated very well how there may be confusion, and so has the noble Baroness. It will be even worse if the person needing care falls between two stools and gets no care at all.

Lord Warner: My Lords, I had not intended to speak on this. However, the eloquence of the noble Earl, Lord Howe, took me back to my days as a director of social services, when we policed the boundaries with the NHS, and it equally policed those boundaries, with great vigour in the 1980s and 1990s. A serious issue for the Government, which is made worse by this Bill, is the way that at a time when we are saying we want to take down this Berlin Wall, we have created, with the best of intentions, a whole range of areas with scope for more disputes between health and social services. They all had a good reason at the time-intermediate care, continuing care, and now free personal care at home. I wonder whether the Government know how many people are now engaged in these various assessments, how those numbers will be increased by this Bill, and how many people are being diverted from providing care to patients and service users in the area of carrying out assessments and policing those assessments in order to see that their particular organisation is not disadvantaged financially.
	If things have been bad at a time when finances are generous on both sides of the Berlin Wall, they are about to get much worse. There seems likely to be a climate where policing of people's responsibilities organisationally and financially will increase. I ask the Government to think through this much more carefully-I think that it has been considered-and to have a serious discussion with the directors of adult social services about the number of people now entrenched in this work, which is not of great use for the provision of services to people who need them.

Lord Tunnicliffe: My Lords, I shall speak first about continuing care and what it means generally, for people sometimes have different interpretations of the term. "Continuing care" is a term for care provided over an extended period to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. The term covers both NHS and social care services.
	"NHS continuing healthcare" means a package of continuing care arranged and funded solely by the NHS. A person is eligible for NHS continuing healthcare if their primary needs-their main needs-are health needs. All primary care trusts and local authorities in England follow a common process to determine eligibility set out in the National Framework for NHS Continuing Healthcare.
	In the third quarter of 2009-10, 50,000 individuals across England were eligible for NHS continuing healthcare, and the number of eligible people continues to increase. However, it is important to recognise that if an individual needs continuing care where their primary needs are not health needs, this will be provided by the local authority, either alone or in partnership with the NHS where appropriate. It is right that, in those circumstances, they should be able to receive personal care free of charge from the local authority if they qualify for it. It is important that NHS continuing healthcare and free personal care are recognised as different ways of delivering health and social care where the balance between health and care may differ.
	It is vital that people do not fall between the health and social care systems. We need to be very clear in guidance that those with continuing needs get the appropriate services, whether that is health or social care. While the number of people who receive NHS continuing healthcare at home is small compared to people receiving NHS continuing care in residential care homes, there are some people at home who meet the criteria.
	We will ensure that the guidance we produce will address the need for primary care trusts and councils to work together to try to ensure a smooth interface between NHS continuing healthcare and free personal care, and that people's needs are identified appropriately.
	Amendment 21 would appear to allow regulations made by the Secretary of State to make specific provision for people who have been deemed eligible for NHS continuing healthcare also to be considered for eligibility for free personal care. The amendment is unnecessary. Where people are deemed eligible for NHS continuing healthcare, the NHS is responsible for providing for all their assessed needs, including personal care if that is part of the overall need. As such, they would not require such free personal care from their local authority because they would already be receiving it for free.
	Amendment 23 would exempt a local authority from providing personal care free of charge to a person who is eligible for or receiving continuing care. As I have explained, "continuing care" can refer to either health or social care services. If an individual needs continuing care, they may require services both from National Health Service bodies and from local authorities. Local authorities should be able also to provide free personal care to such people if they qualify for it.
	However, if an individual is entitled to services as part of NHS continuing healthcare, the person's package of care to meet their assessed needs would be provided solely by the NHS and not the local authority, including any personal care that was required.
	It is important that NHS continuing care and free personal care are recognised as different means of providing health and social care support across the NHS and social care systems. In all cases where it appears to a primary care trust that there may need to be NHS continuing healthcare, the PCT has a duty to take reasonable steps to ensure that an assessment of eligibility for NHS continuing healthcare is carried out.
	It seems to me that the Bill and the explanation that I have given are clear about who pays what. What I believe the noble Earl, Lord Howe, and to some extent the noble Baroness, Lady Barker, were saying is that there may be problems at the interface. We recognise that, and we have already said with respect to the home care that is envisaged as a result of the Bill that we will be issuing very clear guidance. The whole issue of the guidance relative to intermediate care will be covered by my noble friend Lady Thornton as part of the next group.
	It remains for us to continue to be content that the national framework qualification for NHS continuing healthcare is developed in a way that is clear, to reduce any interface problems. In October 2007, the Department of Health introduced a national framework for assessing individuals' eligibility for NHS continuing healthcare, replacing the 28 local frameworks previously used by the NHS. A revised version of the national framework was issued in July 2009 to further develop best practice.
	A key intention of the national framework was to reduce variations in eligibility for NHS continuing healthcare between PCTs. The data collected show that the variation has reduced significantly since the national framework was introduced.
	In addition, all strategic health authorities have developed benchmarking processes that give them detailed information on the numbers eligible in each of the primary care trusts in their area. They are using this to help identify the causes of any variations and the actions needed to address them.
	It is a fair comment that we must get the guidance right in all three areas. We are committed to doing so, and we have shown action with regard to this particular area of NHS continuing care.
	I hope, on the basis of what I have said, that the noble Baroness and the noble Earl will not press their amendments. They both asked a number of detailed questions to which I am afraid I will not be able to give instant answers. I will look at Hansard to see whether there is some useful detail we can add in writing.

Earl Howe: My Lords, this has been a useful short debate and I am grateful to everybody who has taken part, not least to the Minister for his full answer. I found his answer partly reassuring, but we should listen very carefully to the noble Lord, Lord Warner, whose experience in these areas is probably unparalleled among those of us present. He is right. An awful lot of energy and effort are going to be devoted to shoring up a Berlin Wall, and that effort could more productively be devoted, as he rightly said, to looking after people.
	Having said that, I very much welcome what the Minister had to say about the guidance. I think it is quite important that the guidance goes into some detail to remove some of the potential ambiguities in the terms that are to be used in the regulations. Even if the terms that I have seen in the draft regulations are tightened up, I am sure that there will still be scope for argument. The detail really does matter here. This is an area which all of us will follow with a lot of interest, but for now I beg leave to withdraw the amendment.
	Amendment 21 withdrawn.
	Amendments 22 and 23 not moved.
	Amendment 24
	 Moved by Baroness Greengross
	24: Clause 1, page 1, line 22, at end insert-
	"( ) require local authorities and primary care trusts to work together to assess a person's needs and deliver a package of personal care which is designed to maximise the person's ability to live independently"

Baroness Greengross: The Bill aims to introduce reablement or intensive support for people who need home care for the first time, which might be following a period of ill health or a stay in hospital. We know that the Department of Health will issue separate guidance to cover what a reablement package can include. The consultation suggests that this might be physiotherapy, occupational therapy or the installation of telecare or adaptations to the home. People with dementia are significant users of both health and social care. My amendment would encourage NHS and local authorities to have joint responsibility for delivering a health and social care package that could maximise the ability of a person to live independently after, for example, a stay in hospital. I am speaking briefly, as much has already been said on these issues.
	Amendment 34 would ensure that the possibility of reablement is offered to people with dementia, who, as we know, are more likely to stay in hospital for longer than others who go in for the same procedures-the Alzheimer's Society report Counting the Cost, which was produced last year, revealed that people with dementia stay in hospital far longer than those who go in for exactly the same procedure. The longer people with dementia stay in hospital, the worse the effect of the symptoms of dementia and the individual's physical health. Discharge to a care home becomes more likely and anti-psychotic drugs, as we know, are more likely to be used to manage behavioural symptoms. I am concerned that people with dementia may be wrongly excluded from reablement because of the erroneous view that they might not benefit. The amendment would highlight the relevance of reablement whenever possible for people with dementia.

Lord Lipsey: I shall speak briefly to Amendments 26 and 28 standing in my name and the names of the noble Lord, Lord Warner, and the noble Baroness, Lady Murphy. Amendment 28 is simple: it would replace "maximise" with "improve". "Maximise" is the sort of word that should not appear in legislation; it suggests that we should do this whatever the cost, even if it is infinite, which in some cases it could be. "Improve" would be perfectly valid in this context and it would improve the legislation.
	Amendment 26, which is the more important of the pair, is very much a probing amendment, as I want to explore the Government's thinking. Everybody is in favour of re-enablement. There is no question but that it is a good thing-the more it can be done successfully, the better. However, the Bill is drafted in such a way that, if an elderly person is not willing to accept a programme for re-enablement, their free personal care can be withdrawn. That kind of thing is quite common in social policy these days, in the same way that if an unemployed person refuses to take a job their allowance can be withdrawn. That is not always wrong, but I am a bit concerned about what this might mean in practice.
	Re-enablement may not be an easy process for the person undergoing it. Physiotherapy can be painful to anybody of any age, but for someone in later life it may be difficult to tolerate. I do not like the idea that a local authority can say, "You get on and do your exercises, Mrs Jones, or we'll take away your free personal care". That is not the kind of relationship that should exist as a result of such legislation. What guidance will the Government offer to prevent this from being used as a heavy-handed tool to bully old people into doing things that may be on the edge of or beyond what they are capable of, rather than as a tool for encouragement and mutual working together?

Baroness Murphy: I added my name to Amendments 26 and 28. It is important for us to explore this discretionary activity around reablement and how it will be implemented. This is also our opportunity to look at the Government's thinking on reablement. I hope that the noble Lord, Lord Lipsey, will not mind me teasing him for a moment, but I find it interesting that he called it "re-enablement". That is because he cannot find "reablement" in the dictionary either. It does not appear in any dictionary yet; the term has been developed within social services to talk about rehabilitation. I cannot think of a single way in which it is different, but I will come to the cultural aspects of why it is called something different, because that is important.
	This is exactly what intermediate care was set up to do. Again, therefore, I am afraid that there is extraordinary confusion. It is a bit like the difference between a social care bath and an NHS bath. It is not just the bubble bath that goes in from social services; the question is who delivers it and what the philosophy is. That is also the issue with enablement-I am sorry, I mean "reablement", which is the word that will go into the dictionary eventually.
	I know that the wording of Amendment 26 is probably the reverse of what is desirable, so I will save the Minister the effort of responding to the wording. I am as keen as anybody that there should be the opportunity for people to have a professional assessment to see whether there is room for improvement and to provide interventions in the physical and social environment that will allow people to function as well as they possibly can. I am worried, however, about how this discretionary intervention will be exercised in practice, particularly in relation to the concerns that were expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, on the previous set of amendments. The opportunities for confusion, for swapping around and for the exercise of discretion as to who pays for what and who does what are really quite frightening. As the noble Baroness, Lady Greengross, said, the problem arises in particular in relation to those with dementia, perhaps when they come out of hospital and are assessed for the first time, when there will be opportunities for toing and froing between authorities about who is going to do what.
	The reablement approach is interesting, because it was developed with the sense of a restorative and capacity-building approach to improving the lives of disabled older people. It is as much a philosophical and cultural approach as a specific technique-not doing things for people, but assisting and doing alongside. However, one has to admit that there are at the moment no long-term studies that have demonstrated its efficacy over the longer term for people with a level of disability who will be the recipients of the free personal care. We are talking about a seriously disabled group of people. All successful studies have used very high levels of intervention. The Government's short-term studies are encouraging for people of all ages and show that one can achieve a small but significant reduction in the use of personal care services. However, it is important to note that the studies in the care services delivery efficiency programme focused not only on those practical aspects of daily living that are the subject of this Bill but on much broader criteria of success. The interventions were often for longer than six weeks and for far more hours than is being proposed here. In fact, the cost of those successful schemes was more than what has been allocated for the reablement process.
	I suppose that a purist would point out that it is rather bizarre to implement reablement intervention as a prerequisite for receiving assistance, when the long-term studies currently in progress have not reported yet. We know that schemes are nearly always successful in their pilot phases, but long-term sustainability and cost-effectiveness may be difficult to predict. Given how often I have personally pushed for things to be rolled out when there is some indication of support, I have some sympathy with the Government in wanting to do this. However, we should realise that reablement has so far been shown to be effective on, for example, mentally alert people who, after a short stay in hospital with a fractured femur, are coming out and need to get their confidence back. In that scenario, it can be quite successful. However, the Government's short-term studies, which are fine as far as they go, show that reablement is less effective for those with severe disabilities over a longer period. It can be effective, but there is a group of people for whom an intensive, much longer period of care will be required. I have great doubts about the amount that will be required to get the improvements needed within the proposed level of reablement input. That is the purpose of this probing amendment.
	As for Amendment 28, one should bear in mind that, for example, following a stroke or a head injury, maximum performance will not be achieved for perhaps more than two years, which would be a long time after the reablement process had finished. Therefore, I wonder whether the word "maximise" is quite right. I suggest that "significantly improve" would be a more appropriate phrase, particularly for people with mental health problems.

Baroness Barker: I shall speak to my amendment in this group. I want to probe some of the areas mentioned by the noble Lord, Lord Lipsey, again in the context of intermediate care provisions, about which I have previously spoken. Just as intermediate care provisions have an interplay with NHS continuing care, so they do with personal care at home.
	I have a tremendous amount of sympathy with the points made by the noble Lord, Lord Lipsey. I am a fan of reablement. I was a big fan of it when it was called rehabilitation and I was just as big a fan when it was called good hospital discharge. It works tremendously well for a number of people. An older person who has had a stroke and has lost their confidence would value having someone to help them through the processes of returning home and learning to cope again. Sometimes it is a rather crude tool, while the strictures around it and the question of who pays for it have sometimes militated against the policy being as effective as it could be.
	Some people come out of hospital and just want to go home. That is the most important thing to them. They do not want to go for weeks to a place where they do not know anyone to have an intensive period of what they consider to be treatment. They do not want that and they do not feel in charge of it. Some people want to stay with relatives for a while until they get themselves back together. If they choose to do that, sometimes they are deemed to be ineligible for intermediate care and they might be ineligible for personal care at home. However, some of them really need the services. What happens to people who need the services but who refuse to go through the particular pathway set out in this Bill?
	I concede that much good has been done with the £900 million of intermediate care services, but some of the times and ways in which that policy has been implemented have not been particularly effective. An older person with a broken arm or leg probably could do with a period of reablement or rehabilitation when their cast is removed, which may be more than six weeks after they come out of hospital. However, they are not allowed to have that because it does not fall within the timeframe. When the Minister talks about intermediate care, as I know she will, will she say whether this Bill is an admission that for quite a number of older people that arbitrary six-week time limit has been ineffective?
	Also, does the Minister share my concern that there has already been a considerable amount of rebadging-that is a new term, I think, but it has an awful lot of currency in the NHS these days-of intermediate care? I am thinking of things such as rapid response services, which now seem to be the flavour of the day. I do not have a problem with people choosing to call their services new things; I do not even have a problem with the services being given new and better purposes. However, I have a significant problem when money flows behind them in covert ways. That is what I am trying to get to the heart of: where does the money behind this system go? How is that tied to the assessment criteria and the eligibility criteria?
	Finally, health and social care professionals are increasingly having to deal with a particular group of people whose need for services has not changed but for whom the money has run out. These people have funded their care for so long that they have run out of capital and resources. They have very significant needs, so how and when will they move into eligibility either for NHS continuing care or for free personal care? Their needs are very high; it is just that their resources have run out. The noble Lord, Lord Warner, is right: soon we will be back to a time when the assessment of clinical and social care needs will be governed largely by money. In our debate we need to do our best to prevent that.

Earl Howe: My Lords, Amendment 30 in my name is designed to highlight what I hope are some fairly uncontentious issues around reablement. I come at this from a rather different angle from the noble Baroness, Lady Barker, although I very much identified with all that she said.
	Reablement, as we have heard, is to be a precondition for receiving free personal care at home, but the way that reablement is offered and delivered to people will be very much a matter for local authorities to determine. Local authorities that are strapped for cash will be tempted to use reablement as a way of putting off the day when they have to decide one way or the other on a person's eligibility for free personal care. Therefore, in the first instance I am worried that the process of reablement could be delayed, whether deliberately or not, as a means of postponing the burden of costs arising from having to give free care. How will authorities be monitored and held to account for the way in which they deliver reablement? What will prevent them from using reablement as a tool for withholding free personal care from those who would otherwise be eligible for it?
	My second worry is very similar. There appears to be no limit to the number of times a local authority would be able to insist that someone went through a reablement process. The Minister in another place said:
	"There are currently no proposals to restrict packages of re-ablement. It will be for councils to determine who might benefit from the intervention and whether it is appropriate to repeat this at a later date".-[Official Report, Commons, 8/12/09; col. 292W.]
	In other words, people could be put through it at frequent intervals-not for their own benefit so much as for the local authority's benefit, in the hope that the obligation to deliver free personal care might be avoided following a further assessment of the person's ability to cope with the activities of daily living. Again, what is to stop this unreasonable use of reablement from happening?
	For some people, a process of reablement will do little or no good, and may even end up doing harm; those nearing the end of their lives are one example. In some of these cases it will be possible to predict that reablement will be burdensome and at best unlikely to be of more than temporary benefit. While I can readily accept that a refusal to undergo reablement will, in many cases, debar a person from an entitlement to free care-and rightly so-there will be other cases where a refusal is perfectly reasonable in the prevailing circumstances. The noble Baroness illustrated one or two of those examples. How will the system be able to distinguish between those two types of case and what safeguards will there be for service users in that context?
	The Equality and Human Rights Commission has developed that point further. It argues that some people may not want or may not be able to accept or understand that they need social care and support services because of impairment of their faculties, pride, their wish to remain independent or simply because they are in denial that they have become disabled and are in need of care services. In those circumstances, it cannot be right for free personal care to be refused on the grounds that someone had rejected a council's package of reablement.
	Lastly, I am concerned that reablement should not be withheld from someone merely on the grounds that the person's carer has refused to take an active part in the process. The fact that someone has an unpaid carer may or may not provide a useful means of support for a local authority in the way that reablement is delivered to the person. But the active involvement of the carer should never be made a precondition of reablement if for any reason the carer does not want to be involved. How will local authorities be prevented from acting in a way that unreasonably imposes on unpaid carers?

Lord Best: My Lords, perhaps I may add to the probing that is inherent in all these amendments. If the reablement is to be the subject of free support financially, does it have to take place at home or can it sometimes take place more satisfactorily in residential care on a short-term basis? In administering a retirement village outside York, we found that people leaving hospital often did not go straight home but spent time in the intermediate care phase in a residential setting. Would they then forfeit the opportunity to receive financial help with a reablement package that would be available only if they went straight home? Perhaps the Minister could clarify that.

Baroness Thornton: My Lords, I will be replying to this group of amendments which involves a substantial discussion on reablement, including Amendment 24 from the noble Baroness, Lady Greengross, Amendment 25 from the noble Baroness, Lady Barker, Amendments 26 and 28 from the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, Amendment 30 from the noble Earl, Lord Howe, and Amendment 34 from the noble Baroness, Lady Greengross. The amendments deal with the Bill's provisions on reablement. As has been clear from the discussion, they deal with different aspects so it might be useful to touch on what reablement means to the individual and how it fits into the wider range of services on offer, and to explore the issues raised by the noble Baroness, Lady Barker, about intermediate care. At its heart is the intention to help individuals to maximise their ability to look after themselves.
	We have sometimes talked about intermediate care and reablement interchangeably. In essence, both reablement and intermediate care try to do the same thing. They have the same objective of helping to maximise a person's abilities and independence, but come at the problem from different angles. Intermediate care is often linked to people coming out of acute hospital care and returning to live in the community and there is often a health element to that care as well as social care. Reablement is a more preventive approach, identifying people at risk of having to go into hospital or residential care and putting in support to maintain people's independence to help them remain in the community. That might include specialist help to rebuild a person's physical skills and confidence. To answer the question asked by the noble Lord, Lord Best, reablement can be offered in a residential care setting.
	The aim is to maximise that person's independence. It means often looking at how the home environment can support independence. Indeed, at an earlier stage of the Committee, we looked at the range of aids and adaptations that might help people. Grab rails, telecare, adaptations of showers, stair lifts and disabled facilities grants transform the home environment. Regardless of the terminology, what is on offer is simple to understand-and it is widely supported and, indeed, it is already happening. The introduction of this Bill will enable us to provide further funding of £130 million to encourage more people to benefit. In answer to the point raised by the noble Baroness, Lady Barker, this is not about substitution; this is about adding to it.
	There is powerful evidence that reablement works. A research study by the University of York demonstrated that the benefits of reablement are not just immediate, but are long lasting. This is why we believe that it is such an important part of the Bill. Reablement and intermediate care services of various kinds have been developed in many parts of the country. We want to encourage councils to offer reablement to more people wherever that is appropriate and to make it a standard part of how they support people's needs, rather than assuming that care needs will stay the same or increase. This is not about forcing people to do things, but working with them and their carers and families to put them in the best possible shape. We recognise that there will be some people for whom reablement is not appropriate, and we believe it is right to let councils have the flexibility to make sensible judgments about the individual circumstances in which it is appropriate to offer it. Our guidance will address that issue.
	I want to address the specific points that noble Lords have made about the cost of reablement-it is £130 million-and we believe that this will mean that 130,000 people could benefit from reablement as part of the Bill. There is already money in the system to meet some of these needs. What we are doing now through the Personal Care at Home Bill is making more money available to encourage councils to offer more support to more people. Current community care funding provides for aids and equipment. For example, last year we invested £80 million to encourage council investment in telecare and we allocated £168 million for adaptations through disabled facilities grants.
	Amendment 24 in the name of the noble Baroness, Lady Greengross, seeks to enable the making of regulations to require local authorities and PCTs to work together to assess needs and deliver reablement. It is indeed important, of course, that local authorities and partners in health work together effectively to support people. I agree with the motives of the noble Baroness, Lady Greengross, in proposing this amendment. It is vital that local authorities and their partners work together effectively. For the person who has a wide range of health and social care needs, it really does not matter whether what they are receiving is a social care bath or a health bath. Indeed, that interface, as mentioned by my noble friend Lord Warner, is at the crux of much of the care that we want people to benefit from. We recognise that they have to work together effectively, and if they do not it creates anxiety and is very frustrating.
	In Putting People First, we have set out the cross-government strategy to transform adult social care. We recognise how important integrated working is across these sectors, and, in fact, we gave £520 million to councils help them with that. We will be developing guidance which recommends that local authorities work with colleagues in NHS primary care trusts where it is appropriate. An acceptance of the noble Baroness's amendment, however, could force local authorities to consult a primary care trust where, in some cases, there may not be a need to do so.
	I turn to Amendment 25 tabled by the noble Baroness, Lady Barker. In its present form the Bill makes explicit reference to,
	"a process designed to maximise the person's ability to live independently".
	We are calling this process reablement. The Bill allows regulations to be made that will give local authorities the discretion to use a period of reablement as one of the criteria for determining eligibility for free personal care. This does not mean that local authorities should force everyone to undergo such a period of reablement. That is not our intention as in some cases reablement will be neither appropriate nor beneficial to the individual. However, many people can potentially benefit from reablement and we believe that local authorities should be encouraged to make greater use of these services where they are already available and established, and develop them further where provision is currently lacking.
	New Subsection (4C) explicitly sets out the power that will enable the Secretary of State to make regulations to achieve this, which will be accompanied by detailed guidance on how local authorities should decide whether or not reablement would be appropriate for the individual.
	The noble Baroness asked about a person's means, what happens when their money runs out, and when they will become eligible for free personal care. Continuing care is never means-tested. The Bill is designed to support those people who might well have already used substantial personal means to support their care needs, so it will help to provide some relief for them. My noble friend Lord Lipsey, the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, all asked about a person who is not willing to accept reablement, and whether that person could have their free personal care withdrawn. That would be a very heavy-handed tool. It is proposed that free personal care could be refused only where the person had-I think that the noble Earl said this-unreasonably refused that reablement. That will be set out in regulations and is an issue that would have to be treated with great sensitivity. In choosing to refuse an offer that is reasonable, they could not be eligible for free care under the scheme and would have to make a contribution to the cost of their own care. However, it is a very sensitive issue. In an earlier debate, we covered the issue of carers and unpaid carers not being part of the assessment that would take place for free personal care.
	Amendment 26 in the-

Baroness Masham of Ilton: Will the Minister clear up one point before she goes on to the next point? I am not talking about those who refuse reablement; I am talking about those who are not suitable for reablement. For instance, if they are too frail or too ill, will they then be able to get help, and who will decide that?

Baroness Thornton: Yes, they will as part of the assessment process. I was asked specifically about somebody who might refuse reablement. However, I think that I said earlier that it would not be appropriate to offer some people reablement. That will also be covered in guidance. It is very important that the offer which is made to people is dealt with sensitively.

Baroness Barker: One of the difficulties with this legislation is that it covers two distinct groups of people: disabled people who may be young and may have a condition with which they will live for a considerable time-the whole purpose of this measure is to enable them to have the means to pursue fulfilling lives-and older people who become ill for one reason or another. I noted the noble Baroness's distinction about intermediate care being provided to people who have been in hospital. How many people is it envisaged will meet the FACS criteria who will not have been in hospital? We are talking about people who will be very ill and very disabled even though they may not have had acute care. For very many older people who may or may not be eligible for care under this measure, simply maintaining their ability to live independently at a level of operation which is perhaps lower than it was before they were ill-for example, if they have had a stroke-will be a good result. It is not about improving their ability to live independently because, for some of them, it probably cannot be improved; it can only be maintained at a lower level. Is it the intention of this Bill, clumsily worded though it is, to reflect that-that some people will not improve as a result of reablement, but will simply continue to be able to cope and perhaps at a reduced level? That is an important point to make and make clear for people who may be doing assessments in the future.

Baroness Thornton: That is a very important point. The noble Lady has raised two points. On the first, I can think of three people I know who are not in hospital, but who are definitely disabled. Whether they would qualify under this scheme, I do not know. It is very unlikely that they would be in hospital unless something acute happened, though there is no question that they are disabled. The point about reablement is that, if the reablement process-we will talk about "improvement" and "maximise" in a moment-actually enables that person to maintain the level of independence that they already have, it seems to me that that has also succeeded and would count. On the question about the number of FACS-critical people who have been in hospital, we have not collected that information in this form. However, the noble Baroness makes a valid point indeed.
	Amendment 26, in the names of the noble Lords, Lords Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, would seek to change new subsection (4C). It would mean that any regulations which the Secretary of State makes under subsection (4A) that give local authorities functions relating to eligibility for free provision of personal care must specifically allow them to use reablement as an eligibility criterion. I understand that this is a probing amendment, and I hope that I have answered some of the points, but we have been clear from the start that the Bill must enable a two-pronged approach: providing free personal care to those with the highest needs who are living at home, accompanied by a period of intensive support or reablement for all those who would benefit from such a package.
	We do not think that it is necessary to dictate the content of the regulations in the Bill. The working draft of the regulations, which has already been made available to noble Lords, makes plain that advice around reablement will be included within guidance. Stakeholders at several consultation events over the past few months have supported this approach. They welcome increased support for reablement, and we will use their comments regarding its implementation to further shape the content of regulations enabled by the Bill and the guidance on those regulations.
	Amendment 28, in the names of the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, is a very "House of Lords" amendment about whether one should substitute "maximise" with "improve". New subsection (4C) of the Bill refers to,
	"a process designed to maximise the person's ability to live independently".
	The noble Lords and the noble Baroness have suggested that we should replace "maximise" with the word "improve". We do not feel that this best defines reablement. Improvement could mean only a small change in what may already be very poor circumstances. In fact, our aspirations for reablement are that it should do better than this. We want to help individuals to become as well as possible, not only to improve their status, but to maximise their ability to live independently. Therefore, we think that "maximise" is a better fit than "improve" for what we understand reablement to mean.
	I think that I agree with the aim of Amendment 30, tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Morris. Although reablement will have many benefits for the majority of people, we recognise that in some cases it would have limited or no benefit and would not be appropriate, for example, for people who are very frail or who are receiving end-of-life care. We will place in statutory guidance advice around when reablement may or may not be appropriate, along with advice on how a suitable package should be developed with input from and consultation with the individual, their carers and any relevant health and social care professionals.
	Amendment 34, tabled by the noble Baroness, Lady Greengross, would permit regulations to enable a local authority and primary care trust to offer a package of reablement and intermediate care to a person after they had stayed in hospital for more than one week.
	All local authorities can already deliver packages of reablement, helping people to maximise their ability to live at home independently. These packages are most effective when they include a range of interventions to meet a person's range of needs. A package of reablement or intermediate care can, and should, involve a variety of health and social care professionals, along with other interventions, minor aids or adaptations.
	We will be outlining in statutory guidance how we expect local authorities to develop a personalised package of reablement for individuals, and we will make it clear that the person receiving the package, along with their carers, GP and other professionals, should be involved as necessary. We think that this is more suitable for guidance than regulations but we accept the point made in the noble Baroness's amendment.
	We recognise the concerns that the noble Baroness, Lady Greengross, expressed concerning dementia. We believe that people with dementia can and should be able to benefit from reablement services. We need to ensure that the guidance that goes along with the Bill takes on board the issues raised in the dementia strategy and makes it clear that people with dementia should have access to the appropriate equipment.
	The noble Baroness, Lady Murphy, commented on long-term studies. We think that the reablement component increases the amount available to all those presenting for social care, and that it will reduce levels of dependence and may well delay or prevent people needing intensive support. The intention is to focus not just on this group; we believe that reablement has a role to play for a range of groups, including those with dementia or a head injury. As I mentioned earlier, York University has already carried out some studies on this, and we will be assessing the situation in 12 to 18 months' time.
	The Bill is about the free provision of personal care by local authorities and not the NHS. In any event, there will be some circumstances in which it will be more appropriate for the service to be offered solely by either the NHS or social care. We do not want to create fresh barriers, which some of these amendments would bring about, to the most effective delivery of services to individuals. The forthcoming White Paper will reaffirm our commitment to the health and social care systems working together much more effectively as part of a future reform of the care service. Therefore, I ask the noble Baroness to withdraw the amendment.

Baroness Barker: Will the noble Baroness write to me with answers to the questions that I asked about intermediate care? I asked a number of such questions of the noble Lord, Lord Tunnicliffe, and I quite understand why he did not answer them. However, in particular, I should like to have updated figures for the number of people in receipt of intermediate care and for the number of PCTs and local authorities that have a named lead officer. That would be extraordinarily helpful to Members of the Committee.

Baroness Thornton: I apologise to the noble Baroness. I had marked up answers to a lot of her questions and I believe I have now found some of them. The latest figures show that 28,116 intermediate care places benefited 132,720 people between April and June 2008. Compared with 1999-2000, the number of intermediate care beds has doubled, and the number of intermediate care places in non-residential settings has trebled. Three times as many people are benefiting from intermediate care. The NHS Plan aimed for an extra 6,700 places for intermediate care by March 2005-5,000 residential and 1,700 non-residential-and today the NHS has delivered an extra 22,948 places.
	In her previous question, the noble Baroness raised the issue of the guidance. The original guidance has been strengthened to include flexibility over the period of an intermediate care episode-which I think is the point that she raised. That will ensure that people with dementia have access to intermediate care, with that care being commissioned across health and social care, and that reablement services are part of the commissioned service, widening access to intermediate care to include all adult age groups, not just older people.

Baroness Barker: I thank the noble Baroness for that full answer.

Baroness Greengross: I thank the Minister very much for her obvious commitment to the amendments I put forward. I am sorry that she cannot accept them, but I appreciate what she said and I shall think again about them. In the mean time, I beg leave to withdraw the amendment.
	Amendment 24 withdrawn.
	Amendments 25 to 35 not moved.
	Amendment 36
	 Moved by Earl Howe
	36: Clause 1, page 2, line 12, at end insert-
	"( ) The Secretary of State shall report annually to Parliament on the compatibility of regulations made under this section with the European Convention on Human Rights."

Earl Howe: My Lords, we come now to one of the most important legal issues presented by the Bill, and that is its compatibility with the European Convention on Human Rights. One of the most striking features of the Explanatory Notes is the length and complexity of the Government's defence of the legality of the Bill in relation to the convention. Of course it is very helpful to see that defence set out in clear terms, but I cannot remember another Bill where it has been necessary to do this to quite the same extent. The obvious conclusion from this is that, even though the Government's human rights justification may be correct in its bald terms, we are, nevertheless, on quite tricky legal ground. We have already considered the issue of discrimination against deafblind people arising from the Bill and its regulations, so I shall not dwell upon those arguments a second time.
	The other type of discrimination to which the Bill potentially gives rise relates to residents of care homes. It would be perfectly possible for those people to argue that their personal care needs are every bit as critical as those of someone who happens to be living at home and that this discrimination against them amounts to a breach of Article 14 of the convention, taken with Article 1 of Protocol 1, which covers the right to peaceful enjoyment of possessions. Indeed, the department accepts that it is a prima facie breach of Article 14 to discriminate between one person and another on the basis of where each of them lives. Nevertheless, the Government maintain that the different treatment of people living at home is not discriminatory because the policy underlying the different treatment pursues,
	"a legitimate aim in a proportionate way".
	As this is a framework Bill, an enabling Bill, it would be hard to argue that the Bill itself was incompatible with the convention. The issue, rather, is whether the policy to which the future regulations will give substance does indeed pursue a legitimate aim in a proportionate way. As regards the aim of the Bill, and the aim of the regulations, it would be difficult to show that these were in any way illegitimate. So I shall not spend time arguing that case. However, on the issue of proportionality, there is quite a lot that we can say. The Explanatory Notes say:
	"The key aim of the policy behind the Bill is to enable, support and encourage more people to avoid or delay entering residential accommodation ... It is considered that the proposals are proportionate as they are aimed at those people in highest need-the group of people who are most at risk of having to enter residential accommodation".
	The message that I take away from that is that, as long as the Government's assumptions prove to be correct as regards the number of people who are likely to benefit from the legislation, the policy is unlikely to breach the convention. The problem, it seems to me, arises if the Government's assumptions are not correct. As we have said a number of times, the figures quoted in the impact assessment come with a giant health warning. At best, they are an approximation; at worst, they bear little or no relation to reality. So we need to ask: what would happen if the numbers of those eligible for free care in the home turned out to be much larger than the numbers postulated in the impact assessment? What would happen if local authorities are unable to make efficiency savings sufficient to cover their share of the cost of delivering free care? What would happen if, as a number of councils are arguing, it proves impossible to deliver free care to a satisfactory standard within the assumed cash limits? The Government's assumption is that the time taken to deliver help with four activities of daily living is roughly one hour per service user per day, but some councils are saying that it would be double that. What if they are right?
	The money would have to be found from somewhere. It could be found from an increase in council tax. It could be found from cuts in other local authority budgets. It could be found from increased charges for personal care to those who are not receiving their care free. Or it could be found by reducing the amount of personal care being delivered to those same people. If it is the last of these, we are in dangerous territory as far as the European convention is concerned. If local authorities were to withhold personal care from people who are in critical need but who require help with fewer than four activities of daily living, or if they were to withhold it from people with substantial care needs or from people with care needs in a lower banding, it could well make those people decide to move into residential care rather than to be enabled to stay at home.
	In that situation we could indeed see more people receiving free care in their homes, but possibly fewer people receiving care in their homes overall. Should that occur, then a breach of Article 14 is a real possibility, because the Bill would have failed to achieve its stated objective of enabling more people to avoid or delay entering residential accommodation. We would have spent a lot of money favouring one group of people at the expense of a larger group of people. It could be argued that the result would be a disproportionate way of pursuing the policy objective.
	In other words, ECHR compliance will be a matter of fact rather than theory. With all the uncertainties over the costing of the policy and all the worries being expressed by local authorities about its affordability, we cannot know how things will pan out in practice. We therefore have to plan ahead on the basis that human rights compliance will need to be regularly monitored. This amendment is designed simply to ensure that that is done, and done in a way that is visible to Parliament. I beg to move.

Lord Tunnicliffe: I thank the noble Earl, Lord Howe, for tabling this amendment because it caused me to spend this morning studying that magnificent piece of legislation introduced by this Government-the Human Rights Act-and a fine piece of legislation it is too.
	The amendment focuses on the compatibility of the Bill with the European Convention on Human Rights and the requirements of reporting on that. As noble Lords may be aware, the Equality and Human Rights Commission helpfully produced a briefing on the Bill. I shall highlight some key points. I am very pleased that the commission broadly welcomes the Government's commitment to provide personal care free of charge in certain circumstances to people with the highest needs and the additional investment in the wider social care system and acknowledges the importance of reablement.
	In the commission's view, the Bill does not discriminate against those in residential care and the policy of providing free personal care at home is reasonably and objectively justified as a proportionate means of achieving a legitimate aim, and is thus compliant with obligations under the European Convention on Human Rights. We recognise that the commission has some underlying concerns about implementation and the impact on others with social care needs should local authorities not realign their services as a result of the Bill. We are committed to addressing these concerns as part of supporting councils to prepare for implementation and we hope that some of the debate in Committee has gone some way to reassuring the commission.
	Amendment 36 would require the Secretary of State to report annually to Parliament on the compatibility with the European Convention on Human Rights of regulations relating to the provision of free personal care at home. As the Bill states, it has already been certified that in our view the Bill is compatible with the European Convention on Human Rights, and a detailed, well read and thorough memorandum setting out the reasons for this has been sent to the Chair of the Joint Committee on Human Rights.
	In addition, the committee requested further evidence in relation to specific questions relating to the European Convention on Human Rights issues around the Bill, which the Minister for Care Services responded to on 29 January. We will give careful consideration to any points raised by the Joint Committee in its final report. The Government already seek to ensure that any secondary legislation and guidance are compatible with the convention, as required by the Human Rights Act 1998. The regulations which the Secretary of State will be enabled to make by this Bill, and any related guidance, will be no different in this regard.
	The noble Earl, Lord Howe, asked why the note was so long. This is because of Article 14 of the convention. The words cannot simply be taken at face value from the article, but have to be related to former judgments by the European Court of Human Rights and to a similar judgment in the House of Lords acting, as it was then, as the Supreme Court, in 2008, known as the RJM case. Essentially, he is quite right to point out that this fails the first test of discrimination, but it is justified by the argument that the policy is a proportionate response to a need. To quote the memo:
	"The Department's view is that the different treatment of people living at home is not discriminatory. This is because the policy underlying the different treatment pursues a legitimate aim in a proportionate way."
	It has been argued that this is okay, provided that we are actually delivering the policy. I would not like to give the sense that we will not deliver the policy, as we believe that we will and that none of the traps or problems that have been used to illustrate the case will occur. It is very important, on this legalistically technical point, to realise just how far the policy would have to go before it was in any way threatened by the Human Rights Act, because the Act is about protecting individuals from an overbearing state. The Court has been particularly concerned that social policy should be an area where a wide measure of appreciation is accorded to the state by the Court, and I am told that "appreciation" is code for "latitude". It was also noted that, where there is a general rule, a line must be drawn, and it is for Parliament to decide where to draw it.
	The House of Lords noted that social policy is an area where the Court should be very slow to substitute its view for that of the Executive, especially where the discrimination is not on one of the express, or primary, grounds. Even under the most difficult circumstances, it is difficult to believe that the convention would be threatened. Nevertheless, we are concerned that this policy should be successful, and we have already said that there will be a review after 12 to 18 months. That review will need to assure itself that the policy is succeeding and is achieving proportionality. Through the process of looking at the Act and making sure all the orders and regulations are compatible, I believe there will be no risk that the Bill, its policy and its implementation will be incompatible with the Human Rights Act.
	The amendment would impose an unnecessary requirement, particularly as the regulations are highly unlikely to change annually. Given the generality of the Human Rights Act, which I have tried to describe, together with the fact that we will have a review and that the Government are generally bound by the Human Rights Act to implement policy in a way that is compatible with that Act, I hope the noble Earl will feel able to withdraw his amendment.

Baroness Gardner of Parkes: What exactly did the Minister mean when he said that the regulations are likely to change every year? Does he mean the regulations that we make in this country, or the European regulations? I am not clear.

Lord Tunnicliffe: I think I said that they were not likely to change. Either way, I was speaking to regulations made by the United Kingdom. The convention is a fairly steady piece of policy and is being developed more by case law than particularly by change.

Lord Lipsey: The Minister referred to the memorandum that was sent to the Joint Committee on Human Rights. In view of the fact that it is before that committee, will the Minister assure us-I am sure he will-that no regulations will be laid under this Bill until that committee has had a chance to consider the Government's memorandum and to offer its opinion to both Houses on it?

Lord Tunnicliffe: My Lords, I am not sure that I am content with the conditionality of that statement, but I am certainly happy to advise my noble friend that we expect the committee's final report to be available within days: indeed, probably tomorrow.

Baroness Masham of Ilton: My Lords, does the Minister agree that this gives strength to my amendment, which would ensure that people have a right to an independent appeal so that these matters can be sorted out at home rather than having to go to Europe?

Lord Tunnicliffe: My Lords, I am trying to say that the compatibility of the Act and its regulations with the convention is in no doubt. We do not think that the extra reporting which the amendment would require is justified. The Government will implement this Act in a way that will be compatible with the convention.

Earl Howe: My Lords, I am grateful to the Minister for his reply. He is correct; the Bill is compatible with the convention, but for the simple reason that it contains very little. The regulations may well be compatible prior to their implementation. What is in question is whether the Bill and the regulations, in their implementation, will breach the convention because of the unintended consequences that may ensue.
	The Minister is right to advise the Committee that the European Court of Human Rights has been reluctant to intervene in social policy. However, I am advised that a legal challenge that is based on the relevant articles of the convention might well engage the Court's attention, should the effect of the Bill, contrary to intention, prove to be disproportionate. This question must hang in the air, and we shall all be very interested to read what the Joint Committee says. I am a little sorry that the Minister could not answer his noble friend Lord Lipsey categorically, because, should the committee report adversely, the Government would have every case for withholding any further action on this Bill, although that may be unlikely in the circumstances. We can, however, take comfort from the fact that the Government are committed to reviewing the workings of the Act within 12 to 18 months, which will give us the opportunity to look at these matters further. With that, I beg leave to withdraw the amendment.
	Amendment 36 withdrawn.
	Amendments 37 to 43 not moved.
	Clause 1 agreed.
	Amendment 44 not moved.
	Clause 2 : Extent and short title
	Amendments 45 to 47 not moved.
	Clause 2 agreed.
	House resumed.
	Bill reported without amendment.

Mortgage Repossessions (Protection of Tenants Etc.) Bill
	 — 
	First Reading

The Bill was read a first time and ordered to be printed.

Digital Economy Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments

Report (1st Day)

Clause 1 : General Duties of OFCOM
	Amendment 1
	 Moved by Lord De Mauley
	1: Clause 1, page 1, leave out lines 8 and 9

Lord De Mauley: My Lords, our Amendment 1 would remove what we see as the most unnecessary part of a clause that we on this side see little point in having in the Bill at all. I will not go back over all our objections to Clause 1, which we laid out in Committee. I will instead restrict comments to this amendment. As was highlighted during the Committee's consideration of this clause, and as was hinted at earlier, Ofcom already has a duty to encourage efficient investment in infrastructure, so could the Minister explain why we need a new duty on top of the established one? What difference will this new duty make? Will it not, as my noble friend Lady Buscombe said, simply muddy the waters?
	There could well be duplication and confusion from Ofcom exercising its functions under the Communications Act 2003 and the duty that the Government have set out in this Bill. We asked similar questions in Committee, but the answers were not enlightening. The Minister argued:
	"It is right that the regulator should be responsible for this".
	We agree but, as has been pointed out, under Section 3 of the Communications Act 2003 the regulator is already responsible for this issue, so I am not reassured by this argument. More significantly, when addressing the specific question of whether the duty was needed, and whether there would be any overlapping, the Minister argued:
	"It is necessary and there will be no duplication, because we are doing this only once".-[Official Report, 6/1/10; col. 155.]
	I am not entirely certain what that means. The key concern with this clause is that it does not seem necessary. It will, we feel, simply create confusion and overlapping functions. Could the Minister explain more fully quite why he thinks that this will not be the case and what is so wrong with Ofcom's existing duties, which include encouraging investment in infrastructure, that it is necessary to repeat this part of their duties? If the purpose is to underline this part of those duties, could it not have been done in a way that made the point without resorting to legislation?
	The Government argued that the duty was needed because of,
	"the specific importance of investment in electronic networks at a time when many of our communication networks are being substantively upgraded".-[Official Report, 6/1/10; col. 163.]
	It would be helpful if the Minister could explain why the existing duty cannot deliver these upgrades. For instance, digital television switchover is already happening. It is being funded by the licence fee and, as far as I am aware, Ofcom does not have much of a role in the process. I would imagine that radio switchover could happen in much the same way.
	I do not doubt that the regulatory environment needs to change to help to speed up investment in next-generation broadband, but would it not have been better to identify which specific measures are needed? Instead, we have this broad yet unfocused power that the Government are not entirely sure will result in much change. I am afraid that it looks as if the Government are simply adding a duty to give the appearance of action. As with so many things, the Government's response to a problem seems to be more regulation. Unless the Minister can explain exactly what marks out the duty as necessary and distinct from an existing duty, there is no reason to include it in the Bill and there is certainly no reason for this part of the clause. I beg to move.

Lord Young of Norwood Green: My Lords, I made it clear in Committee that new subsection (1A)(a) places a clear requirement on Ofcom to consider the need,
	"to promote ... investment in electronic communications networks".
	There is a clear requirement on Ofcom to consider promotion of investment systematically. Currently, Ofcom is required simply to have regard to the desirability of encouraging investment when it appears to be relevant in the circumstances. It is therefore a significant change of emphasis and an important change in the way in which Ofcom carries out its duties. It would be incredibly short-sighted of us to miss this opportunity to ensure that the regulatory environment for these vital sectors encourages investment and growth.
	Our policy objective as set out in the Digital Britain White Paper was clear that the general duties of Ofcom should be qualified by the need to promote investment. We concluded that the best way of achieving this was by the creation of a new Section 3(1A) (a), (b) and (c), which place a specific requirement on Ofcom to,
	"promote ... investment in electronic communications networks",
	when performing its principal duty. In light of the considerable debate that your Lordships have stimulated, we have considered how we could make the clause clearer to address the matters raised. The result is a series of proposed amendments today-Amendments 2, 3, 5, 6 and 7. The new wording clarifies how the clause will work in practice.
	As the right reverend Prelate the Bishop of Blackburn admirably said in Committee, maintaining the duty for Ofcom to promote investment in infrastructure and public service content so as to help to secure our economic and social prosperity in the future,
	"seems entirely sensible, even highly desirable".-[Official Report, 6/1/10; col. 161.]
	Removing that obligation on Ofcom to promote investment in our communications networks of the future would send an entirely wrong message about our commitment to such a programme of improvement. The duty will not cause confusion. It would not be right to state specific measures, but it is important to encourage investment when it appears to be relevant in the circumstances. It is an important change of emphasis; it is now a principal duty. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment.

Lord De Mauley: My Lords, I thank the Minister for his response, but I am afraid that I have heard nothing new today, so I should like to test the opinion of the House.

Division on Amendment 1
	Contents 73; Not-Contents 194.
	Amendment 1 disagreed.

Amendment 2
	 Moved by Lord Young of Norwood Green
	2: Clause 1, page 1, line 8, leave out "appropriate levels of"

Lord Young of Norwood Green: My Lords, Clause 1(2) of the Digital Economy Bill requires Ofcom in performing its principal duty to have particular regard in all cases to the need to promote appropriate levels of investment in electronic communications networks in public service media content and to have regard to the need for the investment to be efficient wherever possible.
	In Committee, a number of your Lordships questioned the meaning of "efficient" investment and the suitability of the phrase "appropriate levels of investment". Certain of your Lordships were also concerned that the clause, as written, failed to address what they saw as the failure of Ofcom to fulfil its duties to citizens. We have looked at whether changes to the wording of the subsection might be improved to reflect the Government's intention and we are, as a result, proposing a package of changes to new subsection (1A) that I trust will meet the concerns raised in Committee.
	I want to make it clear that Ofcom's principal consideration when making any decision must be the interests of citizens and consumers. The new duty is an aspect of that obligation. We are not introducing a power for Ofcom to impact on individual companies' investment decisions. Instead, the provision is intended to ensure that, as many of your Lordships argued in Committee, when Ofcom is taking regulatory decisions it has in mind the need for investment in public service media content and networks fit for ever increasing demands and next-generation technologies, for the benefit of all and not just the companies involved.
	The amendments in this group, I hope, make this clearer by setting out more clearly what is meant by the words "efficient investment". This is, in the broadest sense, what we generally refer to as economically efficient, taking into account the benefits to investors, consumers and wider society. This definition therefore now captures investment that is efficient in commercial or social terms. Investment in public service media content, for example, would be efficient if the social benefits to citizens outweighed the cost of providing the content.
	A question was also raised as to whether the reference to "appropriate levels of investment" was appropriate. We have looked again at this. Consequently, we are proposing amendments to paragraphs (a) and (b), which will require Ofcom to consider whether it would be appropriate to promote investment per se, rather than require it to make a specific judgment on the level of investment that would be appropriate in a given instance.
	Finally, there was uncertainty about how this new subsection relates to the existing provisions in Section 3(4) of the Communications Act. To put this beyond doubt, the intention is to require Ofcom to give precedence to the need to promote investment where there is a tension between this need and the subsection (4) matters.
	I hope that noble Lords will agree that these amendments make the intention of the clause clearer and that they appropriately reflect the need for Ofcom to promote the interests of citizens and consumers. I therefore ask your Lordships to support these amendments. I beg to move.

Lord Howard of Rising: My Lords, it is a pleasure to see that the Government have listened to some of the concerns that the House raised during the drafting of Clause 1. There are still issues with the clause, but I will save those worries for my amendments. For now, I shall turn my attention to the amendments proposed by Her Majesty's Government. I am grateful for the explanation provided in correspondence by the Minister regarding the Government's thinking on these amendments. As he said, they have had to go back to the drawing board on the specific issue of efficient investment. I was slightly worried that by addressing one concern, the Government may have raised others, but I hope that this debate can lay those to rest.
	This clause now states that Ofcom will promote investment in "electronic communications networks" and "public service media content", where appropriate. That is an important distinction. However, it throws up a number of important questions about the meaning of the word "appropriate", which were not dealt with in Committee. For instance, who decides when an investment is appropriate? By what criteria will such an investment be judged? Will investment be considered appropriate if it leads to faster broadband speeds, greater profits for a company or greater competition in the market? Depending on what criteria are used to define "appropriate", the outcome could be markedly different.
	The Minister wrote to the noble Lord, Lord Mitchell, regarding these amendments, stating that,
	"unlimited investment in all features of an electronic communications network will not always be appropriate".
	I agree. There are always other considerations that will need to be taken into account in determining whether the investment is justifiable on public policy grounds. The Minister referred to those of those a few moments ago. Some clarity on the Government's definition of appropriateness would be helpful, not least for the regulator who will need to balance these new duties with existing ones.
	The addition of the phrase,
	"taking account of the interests of citizens and the interests of consumers in relevant markets",
	presumably ensures that the interests of consumers will be considered when determining the appropriateness of an investment. But what other factors should be considered? Perhaps I am in danger of reading too much into this, but I cannot help thinking that "where appropriate" could just be a generic phrase that gives the regulator enormous leeway in making its decisions. There is a danger that such leeway could create uncertainty for the industry, as businesses will find it difficult to know how the duty will be interpreted.
	All organisations need certainty and a clear and level regulatory playing field. The telecommunications sector is no different, and given the amount of investment required to upgrade the country's communications networks and the length of time required for a return on such an investment, anything that muddies the waters or causes doubt should give pause for thought. Is the Minister confident that the addition of "where appropriate" will not lead to uncertainty-uncertainty that threatens the investment this duty is designed to promote? Finally, can he reassure those of us who remain unconvinced that this clause is needed at all that these amendments significantly enhance those duties that Ofcom already has?

The Earl of Erroll: My Lords, I very much welcome these government amendments, and particularly Amendments 2 and 3. It is primarily lack of investment in much of the infrastructure, particularly in local and rural areas, that has given rise to Amendment 9A to which I will speak later. The amendment stands in the name of the noble Lord, Lord Laird, and I would have added my name to it if I had not been away. I am sorry about that.
	I welcome Amendment 7 which will remind Ofcom of its duty to take into account the interests of citizens. It is all too easy to think of these things in terms of business and profitability, but there comes a point when we must invest in infrastructure. It will not necessarily be seen to be efficient in business terms to start with, but we will get huge rewards further down the line and in other areas of life which may not be strictly relevant to the communications market but will be relevant to many other markets.

Lord Mitchell: My Lords, my noble friend the Minister has addressed many of these issues, but I still have a concern over "appropriate". In some ways it sticks-it just does not feel right in Amendments 2, 3, 5 and 6. I want to tell noble Lords the reason for this, which is generic to this industry.
	I learnt something new this weekend. I came across a new word: exabyte. I have never heard that before. An exabyte is a billion gigabytes, or a billion billion bytes-it is a pretty big number. In 2005, mankind created 150 exabytes; in 2010, 1,200 were created. So, over five years the total amount of data created on earth went up by a factor of 10, and I suspect the rate of increase is going to continue on an exponential basis. If we were standing here in two or three years perhaps we would need another word for a thousand exabytes. I do not know whether there is such a word; maybe there is.
	Even since the Digital Economy Bill was introduced in your Lordships' House three months ago there have been many changes. We have had two major exhibitions in the world: the Consumer Electronics Show in Las Vegas, and a month later the GSM Mobile World Congress in Barcelona. At both those events, major new products were introduced which were dramatic and will change the face of the whole industry. There have been smart phones, tablets, and of course a month ago Apple announced its iPad tablet. On the subject of Apple, last week it recorded 10 billion downloads from iTunes-nearly two for every person living on this earth. As I mentioned once before, there have been 3 billion downloads of apps for the iPhone. Convergence, about which we have talked many times in this House, is now a factor of life; it is happening at a very dramatic rate. Also since the Bill was introduced, we have heard that in the United States, AT&T's network has been struggling with the amount of data required, and O2 has reported problems coping with the amount of data on a broadband basis or mobile network basis.
	To return to the word "appropriate", I want to make the point that I do not like the tone of the word. It does not feel right. It feels, as the Minister himself said in a meeting with me, as though the word is limp. It certainly does not capture the change that is taking place in this industry. It would be more appropriate if we were talking about agriculture or the steel industry, but the IT and mobile industry is changing so fast that we need something that recognises that change more, dare I say it, appropriately.

Lord Young of Norwood Green: My Lords, we seem to be halfway towards pleasing the House if not completely there. I am pleased that we have made some progress in trying to address the problem. I would say to my noble friend that he should take the amendments as a whole. The previous amendment elevated the role of Ofcom to ensure that investment in electronic communication networks was one of its principal duties, which is an important change. I have been trying to get something helpful rather than a legal definition that might engender more of a collective groan than anything else.
	However, this is not about particular investment decisions but about the creation of a regulatory climate that encourages investment. I know that that is what my noble friend Lord Mitchell wants to do. He seeks to encourage investment in an environment where, as he eloquently described to us, demand is exponential. What is interesting is that so far, and there is no room for complacency, we have managed to meet that demand. We know that there are other things we need to do in terms of the UK providing universal broadband and super broadband and we are focusing on those areas.
	I also want to make it clear in relation to the concern of the noble Lord, Lord Howard, that Ofcom's principal consideration when making any decisions must be the interests of citizens and consumers, and the new duty is an aspect of that obligation. We are not introducing a power for Ofcom to impact on individual companies' investment decisions. Instead, the provision is intended to ensure that, as many of your Lordships argued in Committee, when Ofcom is taking regulatory decisions it has in mind the need for investment in public service media content and networks fit for ever-increasing demands and next-generation technologies-to take up the point made by my noble friend Lord Mitchell-for the benefit of all and not just the companies involved. I have endeavoured to address those concerns and, in the light of that, I hope that noble Lords will support the amendment.
	Amendment 2 agreed.
	Amendment 3
	 Moved by Lord Young of Norwood Green
	3: Clause 1, page 1, line 9, at end insert ", where appropriate"
	Amendment 3 agreed.
	Amendment 4
	 Moved by Lord Howard of Rising
	4: Clause 1, page 1, leave out lines 10 and 11

Lord Howard of Rising: My Lords, this is a probing amendment to seek clarity about what the Government are trying to achieve with this part of Clause 1 and, more significantly, to try to understand what the implications will be of the new definition of public service media content. The Minister was kind enough to write to me following our debate on this topic in Committee. In his letter, he confirmed that the Government's new definition of public service media content could include blogs,
	"to the extent that these contribute to the public service objectives set out in section 264(6)",
	of the Communications Act.
	As I pointed out in previous debates, these objectives include a wide variety of topics, ranging from religious and educational topics to entertainment and comedy. As such, it could be argued that almost any website where an individual has editorial control could fall under these objectives-anything from the obvious, such as newspaper sites and political blogs, to comedy, show reviews or even online video games.
	Is it the Government's intention that Ofcom should promote investment into almost anything on the internet? It is hard to see how this will work in practice. I am sure that the aim is not intended to be so broad, but it is what the definition provided in this Bill could lead to.
	The Minister argued in his letter that we need to give Ofcom sufficient flexibility to take into account new forms of public service media content. The need to allow public service broadcasters to invest in distributing public service content in new ways, notably through the internet, is understandable. However, surely what the internet shows is that public service content online is very much alive and well. The whole point of the internet is that services spring up where there is a demand for them. Excellent work is created without Ofcom promoting investment.
	I therefore urge the Minister to think again about whether such a duty is necessary and, more importantly, whether such a broad definition of public service media content will not make the duty so unwieldy as to become meaningless. I beg to move.

Lord Brougham and Vaux: If this amendment is agreed to, I cannot call Amendments 5 or 6.

Lord Fowler: I should like to echo one or two of the points that my noble friend has just put. Exactly like him, I seek guidance on what this section means. As the noble Lord knows, I am a strong supporter of public service broadcasting-not just the BBC but Channel 4, ITV and the other public service broadcasters-so there is absolutely no question of my not supporting it. What I do not understand is the duty placed on Ofcom,
	"to promote appropriate levels of investment in public service media content".
	That is what I do not understand-the promotion.
	For once we are not talking about what is "appropriate" but about what "promote" actually means. Does it mean that it is the duty-or that it is possible or conceivable-that Ofcom could push for more public spending, so that more money could be spent in this area? If it does mean that, does it not bring it smack up against the department that is responsible for spending? In other words, there would be a divided voice. You may well find the department takes one view and Ofcom takes another. Perhaps that is not the intention. However, it is such an extraordinarily wide definition that it seems that Ofcom would be entirely entitled to take whatever view it wanted as a result of this.
	The most useful thing that the Minister could do is to give us examples of what this section means in practice. In other words, what does promoting appropriate levels of investment in public service media content actually mean when it comes down to it? That would be very much for the convenience of the House.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord, Lord Howard of Rising, for introducing this amendment and to the noble Lord, Lord Fowler, for his comments. It will already have been recognised in our debates on the two preceding groups of amendments that the Government have listened carefully to the anxieties that have been expressed in parts of the House about this issue. We have sought to respond as constructively as we can.
	When we spoke about the issue in Committee, we made clear the importance of placing consideration of the need to promote investment in public service media content as one of the most important qualifiers of Ofcom's principal duty. We made it clear that paragraph (b) places a clear requirement on Ofcom always to consider the impact of its decisions on the need to invest in public service media content.
	Public service media content aims to fulfil the specific objectives set out in the Communications Act 2003 for the benefit of the public. The noble Lord, Lord Fowler, is undoubtedly an authority on that Act, and I have no doubt the noble Lord, Lord Howard of Rising, is becoming one. Certainly, I recall that the noble Lord, Lord Fowler, spent a great deal of time debating these issues when the Communications Act was eventually passed in 2003. The specific objective set out in that Act is the benefit to the public. That objective is highly valued by viewers and listeners and has clear social and economic benefits for the UK. Plurality of public service media content drives healthy competition with the BBC-I am sure that that will commend itself to the noble Lord, Lord Howard of Rising, and to his noble friend-and with purely commercial content.
	I emphasise that, in fulfilling this obligation, Ofcom is not taking on new powers. This is a clarification of the powers that Ofcom has under the Communications Act in circumstances where, from time to time, the changing nature of media presents real and obvious anxieties. Changes to the market in recent years threaten aspects of public service media content. I know that the noble Lord, Lord Fowler, and the House committee that he chairs have drawn attention to these matters when we have debated these points in the House on the broader issue of broadcasting policy.
	We consider that Ofcom's existing duty to consider, where relevant, the desirability of promoting the fulfilment of the purposes of public service broadcasting no longer goes far enough. We risk losing plurality in certain genres of public service content. We are not seeking to make Ofcom intrusive but to see that it is placed to evaluate where it can encourage investment and where loss of plurality would be a cost to society. I know that the noble Lord, Lord Howard of Rising, sometimes needs persuading on this point, but we are concerned to emphasise that economic benefits must include social benefits for the community in terms of access to a plurality of sources of provision. It would be detrimental to society and to the industry if we saw erosion take place in that regard, and Ofcom would have no powers to respond to it. The House will appreciate that the Bill seeks to project the discussion and the necessary provisions into the immediately foreseeable future and the more distant future. We want to see Ofcom adequately equipped to fulfil its obligations in that context. Clause 1 therefore strengthens Ofcom's existing duty under the Communications Act and makes a firm commitment to the need to promote investment in our public service media content.
	A few moments ago, we sought from the government side to clarify the meaning of this clause by additional amendments, which is a reflection of the debate that we had in Committee. I hope, therefore, that that is regarded as progress. I emphasise that we cannot predetermine the form and delivery of public service media content in every respect in the years to come. This is obvious from the rapid changes which have arisen from digitalisation over the past decade. It is important that Clause 1 gives Ofcom sufficient flexibility to take into account new forms of public service media content provided by means of the internet, where it is appropriate to do so.
	I emphasise-at least to allay, if I can, the concerns of the noble Lord, Lord Howard; and I think that I will probably be able take the noble Lord, Lord Fowler, with me on this point, though I may be presuming too much-that Ofcom will be required to consider the need to promote investment in public service media content only when performing its principal duty as identified in the 2003 Act-and nothing in this Bill detracts from it-to further the interests of citizens and consumers as it carries out its functions. That is the context in which Ofcom will continue to act. I hope that the noble Lord will therefore feel that the Government's case is made out, against the background of the emendations that we have made by the previous government amendments, and that he can safely withdraw his amendment.

Lord Fowler: Do I understand from the Minister's remarks that the answer to my question is yes-that Ofcom can in fact advocate more public spending in this particular cause?

Lord Davies of Oldham: Yes, my Lords; but Ofcom, of course, operates within the constraints established in existing legislation. On the noble Lord's suggestion that this might give rise to tensions between the department and Ofcom, I have no doubt that in an extreme case, where the issue was of such substance that Ofcom was convinced of very substantial investment being necessary, it is inconceivable that the Secretary of State and his department would not be clearly aware of such issues and would not be very much part of the public debate which had identified the nature of the threat to the public of the loss of plurality of services. It is not as if, under this Bill, Ofcom is operating in a vacuum in which wider considerations are not taken into account. In fact, as we have indicated all along, Ofcom is to take firmly into account the interests of citizens and consumers. The noble Lord, Lord Fowler, would be the first to identify the fact that when we ask Ofcom to do that, we expect it to be all too well aware of the points being made by Ministers, by informed opinion in the other place, and, dare I say it, by informed opinion in this place too, of which the noble Lord's committee might be an important part.

Lord Howard of Rising: I thank the Minister for his reply. I also thank my noble friend Lord Fowler for his support; it is always nice to have support from such a knowledgeable and distinguished source. If we take it that we accept the investment need and the desirability of the investment, as explained by the Minister, it seems that in seeking to improve the width and breadth of what Ofcom can do, the Government may have gone too far. I can understand the requirement to maintain plurality, but if the Minister reads through my remarks he will see that they could be interpreted as applying to all sorts of things that might be miles away from what the Minister and the Government are thinking of. Perhaps he would like to give that some thought, but in the mean time I beg leave to withdraw the amendment.
	Amendment 4 withdrawn.
	Amendments 5 to 7
	 Moved by Lord Davies of Oldham
	5: Clause 1, page 1, line 10, leave out "appropriate levels of"
	6: Clause 1, page 1, line 11, after "content" insert ", where appropriate"
	7: Clause 1, page 1, line 12, leave out ", wherever possible" and insert "(taking account of the interests of citizens and the interests of consumers in relevant markets)"
	Amendments 5 to 7 agreed.
	Amendment 8
	 Moved by Lord Lucas
	8: Clause 1, page 2, line 2, at end insert-
	"( ) After subsection (4)(e) insert-
	"( ) the desirability of encouraging competition in electronic communications services provided over communications networks;
	( ) the needs of the emergency services and the providers of critical national infrastructure;"."

Lord Lucas: My Lords, this amendment brings forward some issues that we discussed at length in Committee. There are two quite separate issues. The first reflects a debate, which the Government have dealt quite well with in their Amendment 6, on the fact that we needed to remind Ofcom of its duty to citizens and customers.
	One particular illustration of that-which struck me as we were doing research for the Committee and which I would like the Government to take account of in the first part of this amendment-is the way in which Ofcom has chosen to deal with various electronic communications service monopolies or effective monopolies. One of the fundamental purposes of Ofcom ought to be to stand up for the consumer where we, as a Government, and it, as Ofcom, have allowed effective monopolies to be created. These are monopolies like Microsoft's operating systems. I see that the European Commission has had a hand in unlinking Microsoft from Internet Explorer and letting the other browser producers have wider access to Microsoft's customers. This sort of effective monopoly comes from having taken one decision and then being bound into others, which is current in bits of the communication market.
	I give two examples. If you are a subscriber to British Telecom's voice over internet services, you will find that you are excluded from all but their own directory enquiries. You actually cannot get through to their competitors at all-the numbers are blocked-whereas we have been to considerable lengths, in other spheres, to make sure that people had equal access to all the competitors on landlines. It is time that Ofcom said something about the desirability of that practice. Locking customers in to essentially uncompetitive services is something which Ofcom ought to be taking into account. Instead, it seems to be totally focused on wanting British Telecom and other voice over internet providers to be able to make substantial profits because it sees it as a young industry. I do not think that it is a young industry; it is becoming a pretty old and universal industry now. Ofcom ought to be coming back to say, "Right, you've grown up, lads. Now there is a grown-up set of rules for you to obey".
	Even in mobile telecoms, which is a pretty mature industry, you find some strange practices in this country. Several of the operators will charge you £1.50 to access a competitive directory enquiries service, whereas in France, where the authorities have taken action, the mobile telecom operators impose a mark-up of about 15 per cent on the price charged by the directory service provider. It is something like four times as high in this country, which is due entirely to the fact that Ofcom has refused to do anything about it. It seems to me that Ofcom should be reminded that it has a real duty to the customer and that there are real problems here which it ought to be moving gently and sensibly to sort out. It is a major force and has a lot of power. It does not need legislation or litigation to deal with these problems. All it needs to do is to come out and say that it finds these practices undesirable. Over time they will go because otherwise, as I am sure the industry realises, there will be legislation or litigation to make sure it happens. However, Ofcom absolutely has to stand up for the consumer in these sort of cases.
	The second part of the amendment deals with the provision of spectrum to the emergency services. I am afraid that I have had a very unsatisfactory letter from Ministers on this. My basic case is that we know that at some stage there will be a demand for additional spectrum for the emergency services. It is not there at the moment because they do not have the budget, and they do not have the budget because budgets are being squeezed everywhere. However, it is clear that the situation in which the emergency services operate on kit whose concept is 10 to 15 years old cannot last.
	The capacity and capability of mobile telecommuni- cations have vastly increased and look set to increase further. When we come to the point-perhaps five years in the future-when we feel prosperous again and decide that the provision we make for our emergency services should be stepped up, we should have the capacity to do so. In their letter to me, the Government recognise that this is likely to be around the 1-gigahertz point in the spectrum-the bit of the spectrum which has been freed up by the digital dividend and which is being looked at in a European context for harmonisation. It is the bit of the spectrum which Ofcom is determined to sell as quickly as possible to the highest bidder. Therefore, when we reach the point when we want to do something for our emergency services, we will have to put them in another bit of the spectrum, and the kit that we have to buy for them will be a great deal more expensive because it will have to be arranged specially. There will be no opportunity, as there has been with the current system, for our industries which supply the kit to market that kit world wide.
	The current system has been a tremendous success. Taking standardisation forward for the current emergency services spectrum, we have been able to sell the kit that we produced for ourselves to a very large number of other countries. That has been a great boon to British industry, which is very much in the lead in this sector. However, the Government are refusing to recognise that. They say that they want to sell the spectrum for which they can find a commercial demand now and set nothing aside for the future emergency services spectrum. That seems to be a dangerous and muddle-headed approach. I do not think that they will have time to do it before the election, so perhaps it will be their successor who has control over this. I believe that one function of government, and therefore one function of Ofcom, ought to be to have regard to our long-term requirements as a nation regarding the spectrum that we want to use for our national security and our emergency services. Subordinating that to short-term commercial interests seems extremely foolish. I beg to move.

The Earl of Erroll: My Lords, I support the amendment wholeheartedly, especially the part concerning the emergency services and spectrum for the critical national infrastructure. Sometimes we forget that the utilities such as electricity and water, on which we are totally dependent, rely on telecommunications for their infrastructure and that, as sophistication increases and control systems get better, they, too, will need a larger bandwidth. If we do not start reserving this at a strategic level, it will get sold.
	The big challenge at the moment concerns the huge shortfall in finance at government level. Whichever party, or perhaps coalition, is in power after the next election, one easy way to try to raise money will be to sell a full spectrum quickly. However, this is not a vote-catching issue. As the noble Lord, Lord Lucas, said, we will wake up at some point in the future to find that, instead, we are faced with a huge expense because this spectrum, under the guise of efficiency, market forces and so on, has been sold off.
	I, too, have received letters saying that the Government's approach to this at the moment is totally inadequate. I hope that the Government will listen and include something at Third Reading or when the Bill goes through the Commons in order to protect with absolute certainty the spectrum that will be needed for international co-operation, for our emergency services and for our critical national infrastructure; otherwise, one morning we may wake up to find that there is no electricity.

Baroness Howe of Idlicote: My Lords, I supported this amendment, or one very similar to it, in Committee. The more I have heard the noble Lord, Lord Lucas, expand on this amendment and the more information I have received from other sources, the keener I am to support it. The example of Microsoft being "encouraged" by Europe to open up to competition is absolutely as it should be. Those of us who live in areas with very poor broadband provision are aware of just how much competition is needed to ensure that the latest methods gain ground to the benefit of us all. However, as has been said, the emergency services aspect of all this is absolutely crucial. During our mini crisis with the snow and so on, a number of areas were failed by a lack of resources and a lack of megabytes. Therefore, I am very much in favour of the amendment. Together with the noble Earl, Lord Erroll, I hope that the Government will take this matter equally seriously, realise how much support there is for it and perhaps bring back an amendment of their own.

Lord Howard of Rising: My Lords, there is a lot of sympathy from these Benches for much of the amendment. A lot of the debate about how we best equip this country for the digital economy has been focused on investment in infrastructure. Although it is important that the necessary infrastructure is in place, particularly for the next generation of broadband, what will drive demand for increased broadband speeds are the services that can be delivered. There is therefore some sense in ensuring that Ofcom gives regard to the promotion of competition in electronic communications services. I am always reluctant to add to a regulator's duties unless there is a specific problem that needs addressing, and I should be interested in hearing the Minister's view on whether this is indeed the case.
	Finally, I want to deal with the second part of the amendment regarding the emergency services and critical national infrastructure. It seems obvious that our communication networks must be able to serve those two critical areas. We must be aware of any potential problems with either the emergency services or our national infrastructure. I only ask whether Ofcom is currently equipped to do such a job. As a largely economic regulator, I wonder whether it has the necessary skills for this particular role. I look forward with interest to hearing what the Minister says.

Lord Young of Norwood Green: My Lords, this amendment is in two parts, and the first part concerns the duties of Ofcom in relation to competition and the desirability of encouraging competition. I did not quite recognise the world that was being described. I see a world where there is a lot of competition in relation to broadband services and telecoms and mobile services. Should we be complacent? No, we should not, for some of the more complicated reasons addressed by the noble Lord, Lord Lucas.
	However, I stress that with respect to every decision it takes, Ofcom must, where it is the appropriate means of furthering the interests of consumers, promote competition in the markets that it regulates. Furthermore, Ofcom must, in any event, consider the desirability of promoting competition in those markets. Therefore, it has an emphatic duty in that regard. Again, if one looks at the range of service providers in internet services and telecoms, both fixed network and mobile, one sees-without suggesting that we should be complacent-a wealth of evidence of real competition. In addition, Ofcom addresses anti-competitive practices and agreements. Indeed, this underpins the majority of its work. Therefore, if we have the kind of scenarios that the noble Lord, Lord Lucas, described, they clearly need to be referred to Ofcom.
	It is therefore not clear just what the proposed amendment would add, and, on that basis, the Government cannot agree with it. I tend to agree-I do not always-with the noble Lord, Lord Howard, that we would not want to extend Ofcom's powers if there were not the need for it. I absolutely agree that it is about driving demand for broadband services, and that is what it has been doing pretty well.
	On the second part of the amendment, my understanding is that the noble Lord, Lord Lucas, is concerned to ensure that Ofcom considers the spectrum needs of the emergency services and providers of critical national infrastructure. I stress that Ofcom already has a duty under Section 3(4)(f) of the Communications Act to consider,
	"the different needs and interests ... of all persons",
	when considering spectrum use. Importantly, this includes the needs and interests of the emergency services and providers of critical national infrastructure. I understand and take the point made by the noble Earl, Lord Erroll, about the way in which our infrastructures control their own networks, so that there will be more requirement for spectrum. However, Ofcom already has a duty to consider that. As I think we made clear in a previous debate, consultation is already taking place.
	The Secretary of State will, where he considers it appropriate, use the power given to him by the Wireless Telegraphy Act to require Ofcom to make spectrum available for certain uses or users. Therefore, we consider that no amendment is needed to give effect to the intentions of the noble Lord, Lord Lucas. We do not see a scenario in which Ofcom blithely goes ahead and disposes of all the spectrum in a grand sale or auction. I do not think that we will ever see quite what we saw on third generation-but who knows? However, it certainly does not have the power to do that without considering the requirements of the emergency services and critical national infrastructure.
	I can offer the noble Lord an assurance that if the emergency services have a robust case for additional spectrum which they are unable to source from the market, a process exists to address that need. Ensuring public safety-to address the concerns of the noble Baroness, Lady Howe-would be a paramount consideration in that process.
	The Civil Contingencies Act 2004 contains emergency powers to allow the making of special temporary legislation to deal with the most serious of emergencies. Such legislation could cover the temporary allocation of spectrum to the emergency services and critical national infrastructure in the event of a national emergency. However, the emergency would have to be of sufficient magnitude that serious damage to human welfare, the environment or security were threatened, existing powers are insufficient and the measures being taken are proportionate.
	I therefore feel that Ofcom's existing powers can deal with the requirements of the emergency services. It has a duty to do so. I hope that in the light of the assurances that I have placed on the record, the noble Lord will feel capable of withdrawing his amendment.

Lord Lucas: I thank the Minister very much for that reply. I think that he has convinced me that this amendment should not go into the Bill. On the first part, I am clear that the matter is already there to his satisfaction in the current legislation, and I think that we both agree that this is merely a question of Ofcom not performing as it should the duties that it already has. So I shall continue to badger Ofcom about that. When it comes to the allocation of spectrum, there is a substantial division between us; but it is not a division for this legislation but a matter of the policy to be pursued by the Government in the long-term interest of the nation. I do not see, for all his professing the supremacy of the requirements of national security and so on, that the actions he is allowing Ofcom to take fit in with that. For now, however, I beg leave to withdraw the amendment.
	Amendment 8 withdrawn.
	Amendment 9
	 Moved by Baroness Buscombe
	9: Clause 1, page 2, line 14, at end insert ", excluding online newspaper and magazine websites"

Baroness Buscombe: Let me begin by once again declaring my interest in this matter as chairman of the Press Complaints Commission and making it clear that I am not here to represent or support the newspaper industry. My interest relates wholly and directly to the crucial issue of self-regulation or, as I would prefer to call it, regulation that is entirely independent of the state.
	My concern is to ensure that the Bill does not diminish the freedom of the press and magazine industry to publish news online that may be partial, including news where there is a person exercising editorial control over that published material. I am grateful to the Minister for taking the time to discuss this matter with me between Committee and Report.
	The issue is a thorny one. I accept without reservation that, where news is disseminated by what can be clearly defined as public service broadcasting, the provision of that news must be subject to the usual rules of impartiality. What is not clear in the Bill is the situation with regard to newspaper and magazine websites, which are not regulated by Ofcom and are not subject to any rules or codes of impartiality. They are regulated by the Press Complaints Commission, which, of course, is a body that itself is not regulated by statute and is independent both of the newspaper industry and of the state. I am concerned that the proposed amendment to the Communications Act in Clause 1(5)(c) appears to give Ofcom new powers to regulate newspaper and magazine websites. I appreciate that Ofcom has given clarification and guidance notes that this will not be its intention, but clearly, if that is not incorporated into primary legislation, theoretically at least the power will exist.
	As I am sure the Minister is aware, the audiovisual media services directive recital states:
	"The scope of this directive should not cover electronic versions of newspapers and magazines".
	I am concerned that the exemption of newspaper and magazine websites, explicitly mentioned in the AVMS directive, has still not been incorporated into English law, either in the Audiovisual Media Services Regulations 2009 or, thus far, by the Bill as currently drafted, and that the audiovisual material on the websites of magazines and business publishers may be caught by the regulations despite this not being the intention of the directive. It is important to note that the Press Complaints Commission remit covers editorial material on newspaper and magazine websites where it meets two key requirements: that the editor of the newspaper or magazine is responsible for it and could reasonably have been expected both to exercise editorial control over it and apply the terms of the code; and that it was not pre-edited to conform to the online or offline standard of any other media regulatory body.
	In effect, if the material is not sourced from broadcasters, such as the BBC or ITN, but is original to the paper, it is covered by the Press Complaints Commission, not by Ofcom. In moving this amendment, I am therefore respectfully asking the Government to make it clear that the Bill's extensions of Ofcom's general duties will not give Ofcom any new powers over any content, including audiovisual content, on newspaper and magazine websites. I beg to move.

Lord Howard of Rising: I strongly support this amendment. My noble friend Lady Buscombe has, with her usual laser-like precision, tackled one problematic aspect of the Bill's definition of public service media content-namely, that it will mean that Ofcom has a duty to promote investment in newspaper and magazine websites. At the moment the newspaper industry has its own regulator, the Press Complaints Commission, chaired so ably by the noble Baroness. It would not be wise to extend Ofcom's remit into this realm. I am not sure that the sector would appreciate Ofcom having a specific duty to promote investment into it. As the noble Baroness has made these points far better than I will be able to do, I will simply congratulate her on bringing forward the amendment and hope that the Minister listens carefully.

Lord Puttnam: I bow to no one in my admiration for the laser-like precision of the noble Baroness, Lady Buscombe, but I would like to clarify something that bothers me. Is the noble Baroness suggesting that, in the event that broadcast material that had been turned down or not used by the public service broadcasters because of its content became available, a newspaper or magazine could put it on its website as broadcast material, avoid any sanctions that Ofcom could bring and fall under the PCC only? If that is the case, the PCC is giving itself an enormous new problem. The other day, the noble Baroness was very eloquent about a particularly difficult situation that she felt did not quite cross the line. I suggest that a great deal of material will start crossing the line. I want to be clear about what is broadcast and what is material that would normally be expected to come from a newspaper or magazine.

Lord Maxton: I shall put it the other way round. The BBC website, in particular, often provides links to other websites. If the noble Baroness's amendment were accepted, would the BBC be unable to link to a newspaper story that was not balanced or would that story then become part of the process of balancing by the BBC Trust or Ofcom?

Lord Lucas: Following that intervention, I hope that the Minister will range widely in his answer. It is not clear to me where old terms such as "newspaper" and "magazine" belong in the modern world. Many of the magazines that I read have no physical existence. Page-turning technology means that you now get something that feels very like a magazine. You can browse it and enjoy it very much as you do a paper magazine. New sources are developing outside the newspaper industry and, the more the newspaper industry tries to make life difficult for its customers, the more these sources will flourish. Where do the Government see the boundary between the part of the media world that has to have balance and the rest of it that does not? How will they draw that boundary in relation to things that are happening on the internet now?

Lord Davies of Oldham: These are the seductions of office, my Lords. The last three contributors invited me to range widely as a result of this amendment. I think that the noble Lord, Lord Lucas, is asking me to define in a few succinct phrases over the course of an hour and half the purposes of this section of the Bill. I shall resist such blandishments and opportunities because noble Lords who contributed to this debate will recognise that I am concerned to allay the anxieties that the noble Baroness, Lady Buscombe, voiced when we discussed these issues in Committee. When we subsequently met to clarify them, she spoke on behalf of the Press Complaints Commission to express its anxieties. That is a significant enough body for me to address it formally to give the assurances that I can give. I hope that I will obtain the withdrawal of this amendment, despite the fact that my reply will fall somewhat short of the expectations, and even perhaps the hopes, of my noble friend Lord Puttnam. It will certainly fall short of the expectations of my noble friend Lord Maxton and, by a country mile, of the hopes of the noble Lord, Lord Lucas. I shall not go over this ground again, nor will I engage in the kind of debate where, if we were not careful, we could be here for many a long hour.
	In her amendment, the noble Baroness makes it clear that she is concerned that Clause 1 grants Ofcom new powers to regulate newspaper websites. I reassure her that Clause 1 does not grant Ofcom any powers to regulate newspaper websites, including audiovisual content. I should also make it clear that the definition of "media services" in subsection (5) covers newspaper websites. As ever with government Bills, this is quite deliberate and constructive. It may benefit newspaper websites to the extent that, in carrying out its functions, Ofcom will be required under Clause 1 to have regard to the need to promote investment in content included in newspaper websites that contributes or may contribute to the public service objectives at the heart of the obligation on Ofcom. Ofcom has advised us that such instances will be rare, but I hope that noble Lords will agree that including online newspapers in the definition of "media services" would be advantageous.
	I want to emphasise an additional point. The AVMS regulations 2009 require Ofcom to regulate on-demand programme services. The regulations define an on-demand programme service as having as its principal purpose the provision of programmes of form and content comparable to programmes normally included in television programme services. The principal purpose of newspaper websites is not to provide on-demand programme services, even where they currently provide some audiovisual content. It is theoretically possible that newspaper websites could provide such on-demand programme services in future. In such a case, the regulations would not-I emphasise this again, as it is the main cause of the anxiety of the noble Baroness, Lady Buscombe-require Ofcom to regulate the entire newspaper website, just the on-demand service that it is obliged to regulate.
	That is the response to the amendment. There may be-I hope not-occasions on later amendments when I can deliberate a little further as I have been invited to do on this amendment, but this amendment was tabled with the specific objective in mind that we should clarify the matter. I have sought to do so and I hope that noble Baroness will withdraw her amendment.

Baroness Buscombe: I thank the Minister for his reply. Perhaps I can remind noble Lords that, as this is Report, it was not within my power to respond to questions. The Minister responded in a way that is helpful to my amendment. We have to allow for some pragmatism because the focus of the amendment is the question mark over new forms of public service media content. There is a need to differentiate the regulation of the websites of the press and the magazine industry and the regulation of a situation where there is public service media content. As the Minister suggested, there may be rare instances where that may include content that originated from newspapers and is specifically aimed at or provided for public service broadcast. I thank the Minister for taking the time to cover this crucial issue and to give me a helpful reply. I beg leave to withdraw the amendment.
	Amendment 9 withdrawn.
	Amendment 9A
	 Moved by The Earl of Erroll
	9A: After Clause 1, insert the following new Clause-
	"Duty to establish scheme to deal with complaints, faults and requests regarding broadband and its associated data and signal carrying cables
	(1) The Communications Act 2003 is amended as follows.
	(2) After subsection 27 insert-
	27A "Duty to establish scheme to deal with complaints, faults and requests regarding broadband and its associated data and signal carrying cables
	(1) It shall be the duty of OFCOM to establish a scheme for the reporting of complaints about, and requests for repairs to, broadband and associated data and signal carrying cables, and services.
	(2) When establishing the scheme under subsection (1), OFCOM must ensure that the scheme-
	(a) allows for the reporting of complaints about the quality of broadband services (including faults and complaints about capacity to carry data or signalling) by registered subscribers, whether or not the subscribers are an end user for that service;
	(b) places responsibility for every complaint or request with either the broadband service provider or the owner of the communication cable (depending on the nature of the complaint, fault or request), and ensures that in no case should a complaint, fault or request not be attached such responsibility;
	(c) requires all repairs or alterations to the communication cables to be carried out in such a way as to accommodate and facilitate reasonably anticipated upgrades to the broadband and associated services;
	(d) requires a broadband service provider or an owner or owners of the communication cables to carry out necessary repairs or upgrades to the same or a better standard than that pertained prior to the complaint or request.""

The Earl of Erroll: My Lords, I have taken over this amendment from the noble Lord, Lord Laird, because I originally wanted to table it myself but I was away at the time and could not get my e-mail to work from abroad, sadly, and could not get through to the Public Bill Office. The objective of this amendment is to try to strengthen the Government's hand in what they put through in Amendments 2 and 3, effectively, which is to put a duty on Ofcom to sort out a particular part of communications infrastructure which unfortunately has heavy underinvestment. The challenge that this amendment seeks to address is the lack of investment in maintaining the local loop, which is the part from the exchange to the customer, when it falls outside areas of high population density: in other words, rural areas and bits of towns which are not covered particularly well.
	The problem arises because Openreach is a separate company but is also a subsidiary of BT, and it is responsible for the repairs and maintenance of this part of the infrastructure. Unfortunately, it suffers from severe financial constraints, not all of which are operational. For instance, there is a huge pension deficit in BT, which means that it has had to cut back on maintenance to a bare minimum. The trouble is that the average non-technical customer has real problems in continuing to receive the service for which they originally contracted their ISP. The ISPs have problems delivering it because they are finding that the lines are degrading. I have noticed that, the more I have said this in other fora, the more people join in and say, "Exactly; my line is getting worse and worse".
	Let us say that you have got a fault on a line which has not been unbundled: in other words, it is still in BT's ownership. You are paying BT Retail for the line, and you are paying an ISP to provide you with broadband over that line. It gets a service from BT Wholesale, which runs what is called the backhaul from the exchange onto the main internet. Openreach is responsible for maintaining and fixing any faults on the line. There are four service entities involved, and there may be more. There are Chinese walls between these, and there is a lot of buck-passing. Let us say that your broadband is not working. You are meant to ring up your ISP, and tell it so. It is then allowed to test the line, and it may well use BT Retail stuff to do that, or it may be Openreach. Do not hold me to the exact detail of who owns which bit. BT Retail's universal service obligation only covers voice over copper, not the maintenance of broadband connections. So it will probably pass that test, but it is still not adequate for broadband, so it comes back and reports that the line is not faulty, but you know, empirically, that it is.
	What do you do next? This is a challenge, because you cannot talk to BT Wholesale. The other thing that could be happening is that either BT Wholesale, or your ISP, could be throttling back your internet connection and reducing the speed on it because it has a lot of traffic, or they could be doing what they call traffic shaping, which is allowing only certain types of traffic through at full speed. This is done through a digital line management unit, which is connected to your digital subscriber line access management unit in the exchange. These are technical things, but they will not tell you if they are doing them. There is no way of finding out, so you are stuck. I have discovered, because my line fell to under half its speed over a four-year period, that, when this sort of thing happens, if you can pester people persistently over a six-month period, and you know something about it, and eventually your line fails completely, there are some excellent engineers at Openreach who can and will come and sort it out. My line is now nearly treble the speed it was a couple of months ago, so they can do it. There is not a real problem with the lines. The trouble is the underinvestment.
	Amendment 9A has a couple of main points. The proposed new subsections 2(a) and 2(b) are supposed to deal with the problem of buck-passing, so that somebody is responsible for sorting out your fault. The next bit addresses the part of the problem whereby, because of the underinvestment and the fact that they are kept on a very short rein, whenever they come to repair your line, they will do the minimum possible to get it working to the minimum standard possible, because there is not much money. Therefore, they could be upgrading these lines when they replace stretches of line. They could be putting in 0.9mm copper instead of 0.5mm: but no, it will go in at 0.5mm, which tends to be universal. With broadband, we want to get better stuff in there, but they will not do that because it costs more money. That is why, under proposed new subsections 2(c) and 2(d), repairs would not be done at the bare minimum. Where possible, they should try to increase the capacity of those lines and improve them, and use that opportunity to steadily improve the network in distant rural points. This is supposed to be positive, and it would give Ofcom powers to put something together that might manage some of the problem. This will also require some co-operation and some financial sorting out, and some other things, but maybe it is a start. I beg to move.

Lord Clement-Jones: My Lords, I did not plan to speak to this amendment but, speaking as a consumer of broadband services, it is quite an inspired amendment, whether or not the Government are sympathetic to it. It is exactly what Ofcom should be doing to allay the frustrations of consumers of broadband services, exactly in the way that the noble Earl, Lord Erroll, described. Many broadband users will have had exactly that experience, where you try to fix someone in this whole chain with responsibility, and wholly fail to do so. I hope that the Minister will be sympathetic, but even if he is not, I hope that Ofcom, when it gets a chance to read this debate, will know and understand some of the frustrations. This is not exceptional. This kind of example is very much a day-to-day situation.

Lord Young of Norwood Green: My Lords, although consumer protection is a necessary and serious issue, I do not think this proposed new clause is needed, because the rights of consumers are extensively covered.
	I will not reply to the technical nature of the contribution made by the noble Earl, Lord Erroll, because I do not think that would be an appropriate use of time. I understand the points that he made, having worked at some time in my life on some of that network. I want to address the underlying concern. Communications providers are required by Ofcom to establish procedures for handling complaints from consumers where they feel that they are not receiving adequate service. Failure to implement an adequate complaints procedure is actionable by Ofcom. I understand the point made by the noble Earl. It can be difficult for ordinary consumers to try to pinpoint where the blame lies and to get the appropriate action taken, but if it is not being handled correctly by the service providers, and if they have not got an adequate complaints procedure, that is actionable by Ofcom.
	If the complaint cannot be resolved within the consumer complaint procedures, consumers are able to file an application with two independent alternative dispute resolution schemes. These are Otelo and CISAS, and do not ask me to explain those acronyms. These schemes can investigate the circumstances of a complaint and make a judgment that is binding on the provider, but not the consumer, who is always free to pursue separate legal action should satisfactory resolution not be possible.
	Ofcom has also taken steps to promote competition and improve the incentives of providers to invest in and maintain broadband infrastructure, including by creating a competitive environment that allows investors who see a case for investing in networks to do so, and ensuring that consumers can make informed choices regarding services and providers, including publishing research on broadband speeds, which was one of the major concerns expressed by the noble Earl, Lord Erroll. The incentives provided by competition should help to eliminate poor service levels for consumers since they will be free, subject to any minimum contract term, to move to another provider offering higher levels of service. The UK has a healthy market for broadband provision, with a wide range of providers offering retail services. Complaints about the absence of supply were the reason for the Government's universal service commitment, which aims to deliver a minimum level of service at 2 megabits per second to virtually every community in the UK by 2012, including rural areas.
	The amendment asks Ofcom to establish a scheme to deal with complaints, faults and requests regarding broadband and its associated data- and signal-carrying cables. Whatever the problems, getting Ofcom to handle this cannot be the right way. It would not even be the direct service provider. This would be a good example of extending the powers of Ofcom in a direction which would not solve the problem. There are some problems, and I understand the points which the noble Earl, Lord Erroll, and the noble Lord, Lord Clement-Jones, are making, but this is not the right solution. As I say, there are already facilities for consumers who want to complain, and Ofcom already has the power to take action if the complaints procedure is not adequate. In the light of that explanation, I urge the noble Earl to withdraw the amendment.

The Earl of Erroll: I thank the Minister for his reply. I just hope that the Government will think about this matter a little harder before it goes to another place, because something should be put into the Bill. Yes, you can complain to Otelo or CISAS about BT Retail or your ISP, who are your communication service providers, but the challenge is that you cannot talk to the very people who are responsible for doing something about it, who are Openreach or BT Wholesale. There is a complete disconnection between the two because of the Chinese walls that were set up for competitive reasons: to try to prevent BT from looking after its own. Unfortunately, the structure that has been set up does not work, and it will take someone else from outside-Ofcom is the only organisation that can do this-to realign the way in which the two work together. At that point, it should be able to stand back again.
	What is happening at the moment is not working. It is too easy for people to pass the buck to each other. If you complain to Otelo or CISAS, BT Retail will say simply that it has done all that it can, and Otelo or CISAS will have to agree that it has. I am afraid that there is a problem here that needs to be addressed, and it would be nice if the Minister could think about this and if the Government could do something about it. My amendment in essence seeks to push things in the right direction. I probably should have tabled it at an earlier stage, but had not thought about the matter hard enough. With that, I beg leave to withdraw the amendment.
	Amendment 9A withdrawn.
	Clause 2 : OFCOM reports on infrastructure, internet domain names etc
	Amendment 10
	 Moved by Lord Howard of Rising
	10: Clause 2, page 2, line 32, leave out from "must" to "and" in line 33 and insert ", if requested to do so by the Secretary of State, prepare reports"

Lord Howard of Rising: My Lords, Amendment 10 seeks to address in practical terms one of the major concerns that we on these Benches currently have with the balance of power between the regulator and the Government. The balance is weighted too far in favour of the regulator, and we would like it to be tilted more towards the Government. This can be done by establishing the right framework. Unfortunately, in this Bill, the Government seem to be happy to carry on as things are.
	I have no doubt that these reports will be vital in assisting the Secretary of State in determining priorities for communications policies. There is no doubt that Ofcom is the body that should carry out such an assessment at arm's length from Ministers. However, I do not understand why the Minister's hands need to be tied by stipulating how often these reports are produced. The Secretary of State is missing a trick if he insists on defining the regularity of these reports so rigidly.
	In many senses, it does not matter whether the report is every two years, as was originally suggested; every three years, as is now suggested; or every four years, as some, such as British Telecom, argue. It seems that the Government wanted to give ground on some issues but were not prepared to go the whole way, and as such they decided on the third suggestion as a halfway house.
	More significant are government Amendments 13 and 14, which are welcome. It has always seemed obvious that any reports that are of significance should be placed in the public domain, and I am glad that the Government now agree. I beg to move.

Lord Young of Norwood Green: My Lords, in Committee, a number of your Lordships had concerns about the frequency of the reports in Clause 2, which it was originally proposed would be every two years. The noble Lords, Lord Howard and Lord De Mauley, suggested then, as they have again today, that the reports should be prepared only at the request of the Secretary of State. The noble Lords, Lord Razzall and Lord Clement-Jones, suggested that four years would be more appropriate, and, during the robust debate that followed, the noble Lord, Lord Puttnam, very helpfully suggested a compromise position of three years as being more "appropriate and reasonable". As I recall, that suggestion was warmly received by the Committee.
	In the light of that debate, the Government have considered this issue and now propose three-yearly reporting, which will be in line with the existing prescribed timetable for Ofcom to prepare other reports, for example the market reviews, and the review of the media ownership rules. I hope that this will reassure your Lordships that any burden on Ofcom or industry as a result of this reporting duty will be kept to the minimum.

Lord Clement-Jones: My Lords, will the Minister clarify that there will be the opportunity for other speakers in this debate to intervene after him? If he is making his ministerial reply now, it will be impossible for those of us who wish to say something in response to the amendment to intervene.

Lord Young of Norwood Green: I am speaking to the Government's amendment as well as addressing Amendment 10.

Lord Clement-Jones: My Lords, that is the problem; it is not possible on Report for other speakers to take part in the debate on an amendment after the Minister has responded.

Lord Young of Norwood Green: I suggest then that I speak to my amendment and not respond at this point to Amendment 10.
	Why do we think that these reports should be produced regularly and not only when requested by the Secretary of State, as the noble Lord, Lord Howard, suggested? The point of this provision is to ensure that the condition of the nation's communications infrastructure is kept under constant review, and that not only are Ministers provided with regular information about it but their attention is regularly directed towards it. If a Secretary of State gets to the point where he feels that he needs a report on the condition of the communications infrastructure because of particular concerns, presumably there is something to worry about and it is already too late to take action to head off that concern.
	Regular reports will ensure that Ministers have good, regular and consistent information that enables them to be well placed to take policy decisions that will place the UK at the top of the league table on communications infrastructure, instead of having to struggle to catch up, as we did with first-generation broadband and are in danger of having to do with high-speed broadband.
	Finally, I reassure your Lordships that Ofcom will still be required to alert the Secretary of State to any significant developments in the sector that are likely to have a significant adverse impact on businesses or on the general public in between reports.
	In Committee, the noble Lords, Lord Lucas and Lord Whitty, expressed a strong view, which was supported by others, that the reports that are prepared by Ofcom on the infrastructure and domain names and sent to the Secretary of State should be published. Our policy intention has always been that those reports will be published as soon as possible. Having considered the points that were made in Committee, we have concluded that for clarity it would be helpful to table a government amendment that requires the infrastructure reports in new Section 134A and the reports on internet domain names in new Section 134C of the Communications Act 2003 to be published by Ofcom.
	As noble Lords will no doubt understand, commercially confidential information or information that should not be disclosed for other legitimate reasons-for example, law enforcement or personal privacy-should not be published. We therefore propose that Ofcom should not have to publish any material that would justifiably be withheld under the Freedom of Information Act.

Lord Clement-Jones: My Lords, I apologise for disturbing the even flow of the Minister's speech, but I wanted the opportunity to intervene very briefly. First, we on these Benches strongly support the new government amendments. As the Minister said, we originally suggested a period of four years, but due to the masterly compromise suggested by the noble Lord, Lord Puttnam, we are very happy with the additional one year. I believe that industry will be happier with that rather longer period, since it was felt that having to report every two years was going to be unduly onerous.
	I also want to put on record that we are strongly of the view that these reports must be prepared by Ofcom, and that it is not good enough to wait until the Government requisition a report from Ofcom. Therefore, we are not of the view that Amendment 10 is desirable.

Lord Howard of Rising: I believe-

Lord Clement-Jones: I think the Minister has not responded-

Lord Young of Norwood Green: My ability to rise promptly is a bit restricted these days. I have made the points against Amendment 10. We do not want unnecessary reports, and I hope in the light of the assurances that I gave in moving the amendments, that the noble Lord, Lord Howard, will feel capable of withdrawing his amendment.

Lord Howard of Rising: I hope I am allowed to speak now. This nice piece of paper says a Member can speak when the Minister speaks early in order to assist the House in debate-that is obviously what he was doing. I beg leave to withdraw the amendment.
	Amendment 10 withdrawn.
	Amendments 11 to 13
	 Moved by Lord Young of Norwood Green
	11: Clause 2, page 3, line 5, leave out "2" and insert "3"
	12: Clause 2, page 3, line 7, leave out "2" and insert "3"
	13: Clause 2, page 3, line 20, at end insert-
	"(7) OFCOM must publish every report under this section-
	(a) as soon as practicable after they send it to the Secretary of State, and
	(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.
	(8) OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000."
	Amendments 11 to 13 agreed.
	Amendment 13A
	 Moved by Lord Whitty
	13A: Clause 2, page 3, line 28, at end insert "giving due consideration to the interests of persons living in rural areas."

Lord Whitty: My Lords, I shall speak also to Amendment 13B. This part of the Bill deals with Ofcom's responsibility for spreading infrastructure, in the areas for which it is the regulator, across the whole of the nation. Whatever form of infrastructure we are talking about, it is common experience in rural areas of England, Wales, Scotland and Northern Ireland that the consumers, citizens and businesses that are located there have worse access, lower speeds in relation to broadband, more intermittency and generally a worse service than in urban and suburban areas. This applies not just to the remotest areas of Scotland, but also-I declare an interest in terms of my home address-in the borders of Dorset and Wiltshire. It is clear that if we are requiring Ofcom to report on progress in installing infrastructure in general, as this clause does, then the way in which we judge whether Ofcom has been successful-or Ofcom has judged the industry to be successful-must pay particular attention to the effect in rural areas.
	In Committee, I was told that there was no need to spell out all the different potentially disadvantaged groups that Ofcom had to have regard to because that was written in Ofcom's basic constitution. I sort of accept that. I was also told there was no need to require Ofcom to report separately to the devolved Administrations, so that they can tackle problems that may arise in their particular areas, because Ofcom always does that. However, this is a specific and new reporting requirement. It is one required by this Bill and it is one to which reference was made in the first debate today on the new clause on Ofcom's responsibilities in relation to infrastructure. Whether you are talking about the changes in the effective operation of your mobile phone as you drive through the rural lanes of our country, whether you are talking about the speed of broadband or whether, equally importantly, you are talking about the ability to access public services and other information in rural areas digitally, then it is an important dimension of Ofcom fulfilling this responsibility that its reporting system should very specifically and very clearly cover the interests of rural consumers.
	I am perfectly prepared to concede that the Government might have a better form of wording here. If anything, there probably should be a stronger form of wording. However, specific reference in the Bill to the rural areas in respect of this reporting mechanism is important. As distinct from one or two of my amendments later on, it ought to be a relatively easy amendment for the Government to accept. I beg to move.

Baroness Miller of Chilthorne Domer: My Lords, I have added my name to this amendment because I do think that this is a particularly important issue. I know the Minister addressed it briefly at the Committee stage so I went back and looked again at what has actually happened in a number of rural areas. People living in rural areas are not just another group. Because of the Government's quite correct drive to get more services online, it has become essential for those people to be able to access those online services, some of which time out if things take too long because they have only a dial-up mechanism. The same applies to online banking. With banks and other outlets such as post offices closing, online access becomes ever more important.
	The Minister may say that other agencies-for example, the regional development agencies-should have been responsible. Indeed, in many cases they did take forward investment effectively. However, that has been patchy. It has not been equal across the regions. Economic and social development are being very adversely affected and this is the least the Government can do to rectify the situation. A long time ago-in fact when the noble Lord, Lord Whitty, was Defra Minister in this House-there was much talk of rural-proofing. This would be one of the main things the Government could do to rural-proof. Perhaps the Government still do a check on their Bills to make sure that they are rural-proofed. I should be interested to know whether this one has been. If it has, the Government should immediately accept the amendment.

The Earl of Erroll: My Lords, this is an opportunity for the Government to indulge in a bit of joined-up strategic thinking. The challenge comes because these universal service obligations, or measures of service, are always population-based, so that it skews it immediately towards the high density areas, such as cities with high-rise blocks. If we do not create the infrastructure out in remote areas, people will be forced to move. As happened in various other preceding great revolutions, such as the industrial revolution, you will see a steady migration of population to where they will have to move to in order to take part in modern society. What you could end up doing is creating more deprived areas. This sounds terrible, as if I am predicting apocalyptic things. I am not trying to do that. However, you will see a general deprivation starting to occur. People will then worry about that and want to address it, and suddenly you will have to put in much more investment and much more money. These things have a knock-on effect-once a few people start to migrate, there is less justification for the infrastructure; then more people migrate, and suddenly it becomes untenable to live there, except for very elderly or very young people who perhaps do not need access.
	It could also be used for positive moves, such as trying strategically to repopulate the Highlands. Farming was never going to repopulate the Highlands, and trying to keep a few people there crofting certainly never did. You could have viable communities up there, but there is no way you could justify putting the infrastructure in if it was on a population-based system. So it may be worth forcing Ofcom to report in a more strategic way, looking at how we use land and resources effectively in the UK.

Lord Maxton: My Lords, the previous Labour Administration in Scotland started a scheme to extend broadband specifically to rural and remote areas. Let us be clear: there is a difference between a remote area, where only a handful of people may live, and a rural area, which could be a village in the middle of Oxfordshire, for example and have a population of 1,000 or 1,500. There may be sufficient demand in that area to ensure the exchange is upgraded to take broadband, even though it may still be down a copper wire. There is already a scheme in Scotland. It is having problems in extending out to the remoter areas of the Highlands and Islands, but it does go out to what one would term the "rural areas" of Scotland.

Lord Puttnam: I support everything that has been said. In Ireland, where I live, a report for the Government recently suggested that, counterintuitively, it was more important to have good, high-speed broadband access in rural areas than in city centres. Such access has already affected the migration of quite a lot of useful employment back into rural areas-the Highlands and Islands in Scotland are a very good example. It is a useful amendment which offers a direction of travel for the Government.

Lord Young of Norwood Green: My Lords, I absolutely agree with the objective of the amendment, which is to ensure that Ofcom considers in its reports the interests of persons living in rural areas. However, as I said in Committee, the amendment is unnecessary because the Communications Act 2003, taken with the provisions in this Bill, already require Ofcom to do just that.
	In precise terms, the objective of the amendment is already achieved by Section 3(4)(l) of the Communications Act 2003, which requires Ofcom to have regard, when relevant, to the different interests of persons living in rural-I stress that-as well as in urban areas. When that is read together with new Clause 134B(1)(b), which requires the report to cover,
	"the geographic coverage of the different UK networks",
	I am sure that your Lordships will appreciate that the object of the amendment is achieved.
	The clause talks of "geographic coverage" because there are sometimes circumstances where coverage may be problematic even in more urban areas, but as I am sure that the noble Lord, Lord Whitty, and the noble Baroness, Lady Miller, are well aware, the vast majority of areas where coverage of communications networks is an issue will be rural areas-or in some cases, as my noble friend Lord Maxton reminded us, it might be even more difficult for some of the more remote areas. That is precisely what paragraph (b) is intended to deal with.
	In response to the noble Lord, Lord Puttnam, and the noble Earl, Lord Erroll, I say that we should remember that we are talking not just about the reports of Ofcom. I remind noble Lords that our report on Digital Britain made a specific commitment to ensure that all areas, including rural areas, have access to broadband of at least of 2 megabytes per second by 2012. That is not the end of the problems of universal broadband service, but it is a commitment to ensure a basic standard for everybody. If only we could ensure that providers delivered that, it would please the noble Earl, Lord Erroll, if no one else.
	In response to the concern expressed by my noble friend Lord Whitty and the noble Baroness, Lady Miller, I say that the commitment is already in existing legislation, coupled with the new requirements. It is amply demonstrated also in our commitment to ensuring a universal broadband service. In the light of that, I hope that my noble friend will feel capable of withdrawing his amendment.

Lord Whitty: My Lords, I am somewhat disappointed by that, because I thought that I had already said that the pre-existing requirement on Ofcom to take rural consumers and businesses into account is clear. However, we are talking about a new reporting mechanism, which requires Ofcom to report, for example, on the proportion of the population covered by the different UK networks. The problem is, as the noble Earl, Lord Erroll, and others said, and others implied, that progress being made nationally conceals that the proportion covered in rural areas is less and, in some cases, going backwards. Unless that is specifically written into the reporting mechanism, the fact that Ofcom in its process-

Lord Young of Norwood Green: I repeat my assurance. The requirement will correspond to the new reporting procedure. The procedure will not somehow stand alone; it will have to embrace that requirement to cover the rural areas. I am talking now about the new reporting procedure, so I wonder whether there is an unnecessary difference of opinion here. I am trying to give an explicit assurance that the new reporting procedures will cover rural areas.

Lord Whitty: My Lords, I can understand that, with all the reference back to the Communications Act and the original set-up of Ofcom, I may have missed something and may be slightly confused. I am therefore prepared to withdraw the amendment. It would be useful if, between now and Third Reading or before the Bill goes to the House of Commons, those of us who are concerned could be pointed to where the new reporting mechanism is clearly covered by existing provisions. I did not follow that from my noble friend's explanation; he undoubtedly has better briefing than me on this matter; but I should still like to see it in black and white. Subject to that, I beg leave to withdraw the amendment.
	Amendment 13A withdrawn.
	Amendment 13B not moved.
	Amendment 14
	 Moved by Lord Young of Norwood Green
	14: Clause 2, page 4, line 35, at end insert-
	"(3) OFCOM must publish every report under this section-
	(a) as soon as practicable after they send it to the Secretary of State, and
	(b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.
	(4) OFCOM may exclude information from a report when it is published under subsection (3) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.""
	Amendment 14 agreed.
	Amendment 14A
	 Moved by Baroness Young of Old Scone
	14A: Clause 2, page 4, line 35, at end insert-
	"Reports on climate change
	134D OFCOM reports on climate change
	(1) OFCOM must, if directed to do so by the Secretary of State, require electronic communications networks and services providers to provide information on their preparedness for climate change.
	(2) The type and format of the information to be collected by Ofcom from providers will be prescribed by the Secretary of State and will require:
	(a) electronic communications providers to assess the risks from current and predicted climate change in relation to their functions,
	(b) electronic communications providers to assess their preparations for a changing climate, including information on the steps taken to reduce or remove the risks referred to under subsection 2(b).
	(3) Under section 134D, Ofcom are required to-
	(a) request information from such networks and services providers as they consider appropriate, and
	(b) send the required information to the Secretary of State as soon as practicable.""

Baroness Young of Old Scone: I shall speak also to Amendment 14B. I should declare an interest as a member of the Climate Change Adaptation Sub-Committee. I apologise for raising this issue only on Report. Discussions with Ofcom and the department have been ongoing. I am grateful to the Minister's department for its engagement, but, having reached a point of impasse, I felt that I needed to bring forward the amendment.
	Climate change will have an increasing impact on essential services in this country. Communication networks and services such as telecoms, the internet and broadcast media will be no exception. Perhaps I may give some examples: heat, floods and storms can knock out services, as can interruptions to power supplies. Transmission equipment can be jeopardised by stormy weather. In emergencies, communication services are vital not only for emergency response but for the public to gain information about what is happening during an emergency, as well as for the public to communicate with one another to gain reassurance about the safety and welfare of family and friends. During the Carlisle floods in 2005, when storms had brought down telecommunications and floods were increasing, Environment Agency staff nobly waded in and out of the local police station, itself underwater, simply in order to keep communications open and the emergency response services in action.
	Just at the time when emergencies do arise, the public want to get more information about these emergencies in order to be able to respond to them. They also want to be able to communicate with their nearest and dearest, with their places of work and with emergency services. I believe that the public have a right to expect that the communications infrastructure and services will be planned to take proper account of the medium-term and longer-term implications of climate change and that communications companies should report from time to time on their preparedness for and resilience to climate change. My Amendments 14A and 14B seek to ensure that the communications companies do so.
	This is not an off-the-wall, unusual request to the communications companies. Those of your Lordships who helped to steer through the Climate Change Act will recall that, under that Act, a variety of public and business bodies-for example, the water companies and the energy companies-are required to report on their preparedness and their adaptation to the impact of climate change. The communications companies were not included in that group, I think by mistake rather than by design. The water companies, the energy companies and others classed as statutory undertakers are required to report. Of course the communications companies do not fall into the category of statutory undertakers, but they are, as I am sure your Lordships would agree, just as important to this country's resilience to the impact of climate change.
	Amendment 14A tries to correct what I believe is the erroneous omission of the communications companies from the Climate Change Act reporting requirement by asking Ofcom to seek reports from such companies, whose resilience to floods, heatwaves and storms is important. The Secretary of State will prescribe what information he needs to know, so Ofcom is not required to become an expert in climate change impacts and their adaptation. The proposal would not cover all the companies regulated by Ofcom but would leave Ofcom to judge which companies are the most important in terms of resilience to climate change impact.
	Amendment 14B would enable Ofcom to use its existing information-gathering powers to require communications providers to supply the information required and would ensure that Ofcom could not just ask willy-nilly for excessive information. It makes it clear that the power would be subject to the restrictions in Section 132 of the Communications Act 2003, which says that demands for information must be proportionate.
	I am absolutely certain that the Minister will resist this amendment, although I do not believe that that is because the Government do not want communications companies to have to report on whether they are resilient in the face of climate change. I believe that the Government want that; indeed, in response to the consultation about Ofcom's powers, they confirmed that they believed that the industry should plan for the resilience challenges posed by climate change. The disagreement is really about how that can be achieved. In the discussions that have been taking place, the Government have proposed that these issues be addressed later, in the wider context of the new security and resilience requirements that arise as a result of the recent review of the EU telecoms framework legislation. The revision to this framework directive has only just been published. The timescale for transposition is unclear and, although I would hesitate to accuse the Government of fiddling while the UK floods, it feels a bit like that.
	The Minister has meanwhile proposed a voluntary arrangement of the key players in the sector, which might be in place by the autumn. I believe that this is too important an issue to be left to a voluntary agreement with the industry to provide some unspecified information from unknown companies at some possible future date. Wisely, the Government have not accepted a voluntary approach with other key industries, so I do not believe that they should accept it with the electronic communications industry, which is vital to emergency resilience and the work of other parts of the critical national infrastructure.
	This may be the wrong amendment. If it is, there are perhaps other ways in which the Government can give assurance on these points. Clause 2 of this Bill, which amends the Communications Act 2003, requires Ofcom to prepare reports on electronic communications networks and services matters, including preparations made by providers for responding to an emergency, the steps taken to assess the risks of different types of emergency and the steps taken to reduce those risks. Perhaps the Government might give guidance to Ofcom to ensure that the definition of an emergency includes not just immediate emergencies and resilience envisaged by the clause, but also the very likely medium-term causes of future emergencies such as the impacts of climate change. It should also include the risk assessment and resilience measures to be put in place by the communications networks and services to meet not just these immediate risks but the medium-term and longer-term climate change impacts. That piece of guidance to Ofcom might strengthen the position.
	The ideal situation would be if the Government were to ponder on this amendment and bring forward one of their own, either at a later stage in this House or in another place. At the very minimum I ask the Minister to give assurances to noble Lords, and indeed to the public, that these vital communications companies will ensure that they are resilient to the impacts of climate change and that they will be required to report on that resilience, as the majority of other organisations and companies important to national climate change adaptation and resilience already have to do by law. I beg to move.

Lord Clement-Jones: My Lords, we support in principle the amendments put forward by the noble Baroness. Indeed, it would be very strange if we did not support the amendments from these Benches. The noble Baroness has clearly spotted a gap in the Climate Change Act, which could be filled by this amendment. The Government are suggesting a voluntary agreement; I am not quite sure why-it is not entirely clear-but I urge them to take seriously what the noble Baroness, with all her experience in this area, is putting forward. These seem to be sensible suggestions and I very much hope that the Government will look seriously at either accepting the amendments or giving them further consideration as the Bill progresses.

Baroness Miller of Chilthorne Domer: My Lords, since Committee the Minister has been kind enough to write to a number of us about the matters raised by the RUSI report into the resilience of the communications networks, particularly first emergency responders and local authorities. The report pointed out many of the gaps. The Minister said in his letter that those were largely organisational gaps, but when I went back to the report I saw that the issue is a bit more far-reaching than that. I am grateful to the noble Baroness, Lady Young of Old Scone, for raising this issue, because I am little bit shocked that, as we worked our way through the Climate Change Bill in this House, we did not question the role of communications networks. It seems that, of all the statutory undertakers, those in charge of communications are right at the front line.
	I, too, hope that the Government will be able to do more than say that they will put this back until they have something to transpose from the directive, because between now and then there are likely to be, on the basis of the last year or two, many more floods and many more weather emergencies. Nobody has better experience of these things, I would suggest, than the noble Baroness, who was of course in charge of the Environment Agency as the water was rising up towards that electricity substation. She has particular experience of exactly how fast these things can happen.

Lord Whitty: My Lords, I declare an interest as both a member of the board of the Environment Agency and a member of the Joint Committee chaired by the noble Lord, Lord Puttnam, who is no longer in his place, that carried out the pre-legislative scrutiny of the Climate Change Bill. It was clearly a fault of those who were scrutinising the Climate Change Bill that this issue was not included. Communications are absolutely vital not only in responding to the acute situation of an emergency caused by changes in weather conditions but in future-proofing the systems in terms of expected changes in temperature, soil composition as a result and so on. I hope that, even if the Minister does not completely accept the amendment moved by the noble Baroness-I nearly said "noble friend", as she was once-the Government will accept that Ofcom should take on an equivalent function to the ones that Ofwat and Ofgem have in planning for resilience in the face of climate change. Whether or not that is done in this precise form, an indication from the Government tonight would be helpful.

Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness, Lady Young, for introducing the amendment in a largely constructive way, although she referred to an "impasse", which is not quite the word that I would have used. I hope that I can reassure her that, far from there being deadlock, the Government are extremely constructive and anxious on this matter.
	I am grateful to other noble Lords who have participated in the debate for stressing the importance of resilience in the telecoms network. The Government regard resilience to the risks caused by climate change as being of the utmost importance. That is why the Bill introduces a requirement for Ofcom to provide a triennial report to the Secretary of State on electronic communication infrastructure and its resilience. That refers to overall resilience, but we are concerned about a high level of resilience for the UK telecoms networks. Climate change is, of course, significant, but we also need resilience to risks such as loss of infrastructure through malicious or terrorist attack, human error, accident, force majeure or whatever. By its very nature, that will include natural events or disasters, whether or not they are caused by climate change.
	The noble Baroness, with her vast experience in her role in the Environment Agency, will know only too well that the Government have already acted on the issue of resilience. Following the Pitt review on flooding, a voluntary industry work programme to enhance resilience was put in place. That work has been going on for a considerable time. As she also knows, we also have the Flood and Water Management Bill, which we will have the greatest pleasure in debating in Committee in a couple of weeks-indeed, I gave an assurance at Second Reading that we would be considering these matters in some detail.
	The necessary resilience of our telecoms network is of great importance. Far from the Government being obstructive, we are greatly exercised, not just through the promptings of the noble Baroness but because of the views of others who are concerned about climate change. We are concerned about resilience and we are taking action.
	It is important to consider resilience as widely as possible. I do not want to risk detracting from all the existing work to enhance resilience to other risks by introducing different sets of reporting requirements on different risks. At this late stage it would also be unwise to include further onerous blanket requirements across the entire sector when we have not consulted it on that. There is a requirement on Ofcom to report on and play its part in guaranteeing effective overall resilience to any threat to our system. In the report to Parliament, Adapting to Climate Change: Ensuring Progress in Key Sectors-2009 Strategy for Exercising Adaptation Reporting Power and List of Priority Reporting Authorities, published in November 2009, the Government committed themselves to engaging with industry on climate change adaptation. Discussions have been taking place with Ofcom on how to achieve a voluntary way forward on reporting on climate change adaptation matters.
	Once we have a clear view on the impacts of climate change on the telecoms sector, we can explore with Ofcom how this can be incorporated within its triennial reports on resilience, to which I referred a few moments ago. Ultimately, should the impacts of climate change present a risk to the telecoms networks, reporting requirements on overall resilience are bound to reflect this, alongside all other risks that are of great moment. Creating a separate reporting requirement is not the most effective way of getting the industry to play its full part in mitigating the risks and tackling the problems.
	We know that the telecoms sector takes resilience extremely seriously. After all, it is in its interests to ensure resilience to challenges that climate change may present in the same way as it does in relation to other risks. Providers voluntarily offer high levels of resilience through an all-hazards approach that is achieved through ongoing dialogue and close co-operation. This reporting requirement would undermine that overall approach that the House will appreciate we need. There are no data available demonstrating how the telecoms sector is at risk from climate change. To mitigate vulnerability we need further discussion and analysis with the industry, taking data into consideration. To create a new legislative reporting requirement would run counter to the light-touch legislation by which the sector is currently regulated. It would at the same time detract from the comprehensive approach to risk that it is in the industry's interests to address and which the Government are pursuing vigorously.
	I make the obvious point that, if the Committee on Climate Change wants to pursue these issues further in detail, of course the Government will respond constructively, but a comprehensive approach on resilience is necessary. I have said how the Government and the industry respond when a potential threat occurs. We have already seen that in the context of the response to the floods since 2007.
	Although this Bill is largely the concern of the Department for Business, Innovation and Skills, which has real concerns about how regulation is enforced and developed with the industry, and although the DCMS inevitably has a great interest in many aspects of the Bill, I emphasise to the noble Baroness-I speak as one of the team of Defra Ministers-that the Secretary of State has taken a particular interest in this issue. He is all too well seized of the importance of climate change in relation to the telecoms industry, but it is not his view, nor the view of Defra as a whole, that this amendment and this specific form of reporting is necessary or desirable.
	I therefore hope that the noble Baroness will withdraw her amendment. She has certainly presented an important case, but I hope that she will accept the assurances that the Government take the case seriously and are already addressing these issues, albeit in a different way from the one that the amendment enjoins. We believe that the amendment would somewhat frustrate the total picture that the Government are seeking to establish.

Baroness Young of Old Scone: I thank the Minister for his answer, which was reassuring in some respects but not reassuring in others. I also thank the noble Lords, Lord Clement-Jones and Lord Whitty, and the noble Baroness, Lady Miller of Chilthorne Domer, for their support for the amendment.
	I am glad that the Minister has indicated that the Government are taking this issue seriously, because it is a serious issue. However, I am a bit bemused by the idea that somehow requiring the communications companies to report would undermine the general approach that the Government are taking. It may undermine the general approach that the Government are taking to the regulation of the communications sector, but it seems to me that it would bring the communications sector entirely into line with the requirement by law to report on climate change adaptation that has been laid on all the other sectors that are important in national resilience. That does not therefore seem to me to be a killer blow to the amendment. If it is sauce for all the other geese, why is it not sauce for this particular gander?
	Waiting for a clearer view on what the climate change impacts on the communications industries might be before deciding what to include in the triennial reports is probably a longer process than is necessary. As I said, all other sectors are required to report without the work on impacts necessarily having been gone through in detail. The whole point is to get the sectors to think for themselves about the impact of climate change on the resilience of their businesses and their services to the public and to get them to report back on their risk assessments and what they are doing about them. Spoon-feeding the communications industry in this respect seems to be out of line with the requirements that are laid on all the other sectors.
	I am pleased that the Minister is saying that the triennial reports on resilience that Ofcom must provide will include the future long-term impacts of climate change, not just the immediate short-term definition of what an emergency is. However, that is not a view that Ofcom currently shares, so I will take up his invitation to come back at a later stage of our consideration of this Bill to establish why there seems to be a difference of view between the Minister and Ofcom about what these reports will legitimately cover. I beg leave to withdraw the amendment.
	Amendment 14A withdrawn.
	Amendment 14B not moved.
	Amendment 15
	 Moved by Lord Lucas
	15: Before Clause 4, insert the following new Clause-
	"Disclosure of information
	An internet service provider may not disclose information which enables a subscriber to be identified to a copyright owner unless it is satisfied-
	(a) that the process used by the copyright owner to procure evidence on online copyright infringement is legal and accurate, and that it has been appropriately employed;
	(b) a court is so satisfied; or
	(c) OFCOM is so satisfied."

Lord Lucas: My Lords, in moving Amendment 15, I shall speak at the same time to Amendment 31. The Minister knows what this is about; we talked about it extensively in Committee. It seems to me that now is the time to take all the good intentions expressed all the way round the House and reach some sort of conclusion.
	The purpose of this bit of the Bill, which we are just coming to, is to produce a sensible and civilised way whereby copyright owners can effectively enforce their copyright in a situation where the theft of copyright material has got seriously out of hand. We have made a lot of progress in this Bill, and with the amendments which the Government will bring forward, to produce that effect-something which will start off by being educative, and which will be punitive only after very reasonable procedures have been gone through. I hope very much that it will be effective.
	Unfortunately, there have sprung up what I would describe as abuses. They may not technically be abuses, but they are certainly abuses of current practice so far as the citizens subject to them are concerned.
	The game works roughly like this. You find an owner of an obscure bit of copyright that is available on the internet, preferably something pornographic and extremely nasty. You then employ a piece of software whose innards have never been exposed to the public, or tested in a court, to produce allegations that a particular set of IP addresses have made that copyright material available for upload over the internet. You then take tens of thousand of these cases to court and, using a Norwich Pharmacal order, obtain the details of the relevant subscribers from their internet service providers. You then write them a letter, which has basically three elements to it. First, it says: "You have committed this transgression of copyright". Secondly, it says: "If you force us to take you to court, we will pursue you for a very large sum of money". Thirdly, it says: "But we offer you this opportunity to settle for a mere £500 or £800"-or whatever the figure is-"and we will forget all about the perils of court and the vast sums for which you might otherwise be liable, because basically we are very good people, and all that we are seeking to do is to protect our copyright".
	This scam works because of the impossibility of producing proof against this allegation. How can you prove that you did not do this thing? You have an internet connection, and they say that it was done over that internet connection. It is no good producing your computer, because you committed the offence using a different computer. It is no good saying that you are a 97 year-old widow and that you hardly know how to use the telephone, let alone the internet, because, nevertheless, you have an internet connection and they say that it was abused. It is extremely difficult to produce evidence to gainsay this. All you can do is deny it, and one of the things that they say in the letter is, "Don't bother to deny this without producing evidence that you didn't do it".
	The result is that a very large people of number pay up, as a result either of the first letter or of the letters that follow. As far as I can discover, despite the tens of thousands of orders that have been granted, the solicitors involved have never taken a seriously contested case to court, because getting money out of people on the basis of the compromise offer is actually what is lucrative.
	There may or may not be truth at the root of this, but this is a route for obtaining redress for copyright abuse which has been neglected, and with good reason, by the reputable end of the copyright industry. It produces a great deal of distress and indignation among many thousands of our citizens, and it ought not to be allowed to continue now that we are producing a better and proper route for redress for copyright owners, particularly where we are looking at volume cases-where we are looking at large volumes of infringement. That is exactly what the Bill aims to deal with.
	My Amendments 15 and 31 look at a couple of possible ways of dealing with this. We could act on the internet service providers and give them a defence against revealing the details of their subscribers-we could say that either they or a court must be satisfied that a fair and accurate process was being used-or we could give the court the power to say, "No, here is this Act which provides a proper remedy for copyright owners who are suffering from the sort of abuse which is alleged in these letters. Let them use that route because that is fairer for consumers and a fairer basis on which to operate, which is what Parliament has decided, and lay off the techniques which are being used to extract money at present".
	Mostly, to date, one firm has been involved, but now a second firm is getting involved. The news of how lucrative this is has spread. If we do not do something about it, we will have more firms creeping into this business. There is plenty of copyright in unpleasant material. There are plenty of opportunities for these firms to make money. It is high time that we do something effective to put a stop to it. I do not mind which of the amendments the Government choose. I suspect that if I was forced to choose between them, I would choose the one put forward by the Liberal Democrats. It might not be perfectly drafted, but if we get it into the Bill now, the Government will have an opportunity to redraft it for Third Reading. But this must not be allowed to continue. I beg to move.

Lord Razzall: My Lords, I shall speak to Amendment 16, which is grouped with the amendments tabled by the noble Lord, Lord Lucas. There are many ways to skin a cat. Our amendment is aimed at solving the problem to which the noble Lord referred. In Committee, we discussed this matter. From the letters that noble Lords on all sides of the House have received, it is apparent that there is a problem with the activities of one particular law firm. As the noble Lord, Lord Lucas, said, we think that now two law firms are involved. I am very grateful to Which? for drawing to our attention, apart from the letters that we have received, the problems of which it is aware.
	The Minister has been helpful in circulating to all of us the information that he has received from the Law Society's regulatory body. This information indicates that the society is very alert to the practices of the law firms in question, as referred to by the noble Lord, Lord Lucas. There is a debate as to which of the approaches-the approach of the noble Lord, Lord Lucas, or ours-is the correct way of dealing with this. He is right that this gives the Minister the opportunity to get into the Bill something that can deal with the matter.
	Perhaps I may put into one sentence-when people say that, they usually go on to speak for five minutes-what I feel is the view on these Benches. As noble Lords will have realised, I have always been hugely sympathetic to the interests of the creative industries. I completely buy the argument that we cannot allow our creative industries to suffer from the illegal downloading of material. However, the creative industries have spent a large number of years trying to get their act together in relation to what they want the Government to do. They have eventually arrived at that point, and we now have the proposals for the code and the technical measures. However, the creative industries cannot have it both ways. They cannot have the huge amount of effort which Ofcom, the Government and everyone else will be putting into getting the technical measures into place-let alone the costs which will be incurred both by the ISPs and by themselves-while at the same time saying, "But we also want to reserve the right to send letters to people through our lawyers saying that if they do not pay their £500, there will be frightful consequences". Under this amendment, if the copyright owner believes that there is a breach, it will have to go through the technical measures rather than go to court.

Lord Gordon of Strathblane: My Lords, the House is greatly indebted to the noble Lord, Lord Lucas, for tabling a number of amendments in Committee to which the Government have now responded. However, I wonder whether he does not feel that, on reflection, and on a close reading, government Amendment 100 largely deals with all the problems that he has raised, including the prospect of costs being awarded to the subscriber. That should be a sufficient deterrent to rogue firms of solicitors who try to make a quick buck by writing threatening letters.
	The Government have given every evidence of having listened to everything that the noble Lord, Lord Lucas, said in Committee, and with which I largely agreed. The balance was too heavily tilted in favour of the copyright owners. However, that balance has been addressed by the Government's later amendments. I am not sure that I see the point of looking for something extra at this point.

The Earl of Erroll: I greatly support the sentiments behind these amendments. Although I take the noble Lord's point that Amendment 100 addresses this issue, it deals with it only in the context of a letter that has been raised within the confines of the Bill. The point being made by the noble Lord, Lord Lucas, is that law firms and others could continue to send letters which are nowhere within the ambit of the Bill and which are not controlled under it. So they can put whatever they want into those letters. They could even refer to the letter in a way that would give the illusion that this legislation is involved.
	This may sound like a different point, but it is not. When we had the confusion over people asking for information about subscribers' telephone details, we ended up having the Regulation of Investigatory Powers Act to try to consolidate the position. People did not know whether requests were genuine. It would be a big loophole if we left in the Bill a system that could give rise to abuse. We now have a chance to knock this on the head once and for all. Then we can do everything in a proper and consolidated way, and we will know where we stand.

Lord Puttnam: Will the Minister give us an indication of his conversations with the Law Society? In what ways or by what means can the Law Society prevent its members acting in a way that hardly appears to be in accordance with the normal duties of a solicitor?

Baroness Howe of Idlicote: My Lords, I was going to make a similar point. We have concerning evidence, as we all said in Committee, that one and now apparently two so-called solicitors are behaving in this way. Clearly this has to cease. Equally, there has recently been legislation and the establishment of new bodies which are just coming into effect. I am less keen to put something into the Bill immediately, as it will not necessarily be the right answer to the problem. I am a little more cautious about it at this stage. It has to be dealt with and is disgraceful. If these firms really are law firms, they are bringing their whole profession into disrepute.

Lord Whitty: My Lords, the Government would be wise to take on board a provision such as this one if they want their other measures to receive a degree of acceptance if not enthusiasm. As my noble friend the Minister knows, I am deeply sceptical about the approach of this Bill. One of the reasons for that scepticism-and one of the reasons detected by the rather small group of consumers who actually understand these things-is an awareness of these kinds of abuses being committed under the present system by the rights holders who to go to court and, even more diabolically, by some of their legal representatives. Acceptance of the future system proposed in the Bill would be aided if these abuses were cleared out of the existing system.
	With due respect to my noble friend Lord Gordon, Amendment 100-with which there will be some difficulties anyway-does not address this issue because it is a post facto situation involving someone who has gone through the technical measures and procedures in the Bill. The abuse addressed in the amendment put forward by the noble Lord, Lord Lucas, involves the present system of going through the courts. That has given some rights holders and their representatives a pretty poor reputation among those who ought to be enthusiastic consumers of their output. This has in part soured discussion about the objective the Government are trying to achieve in the Bill. I hope that one of these amendments appeals to the Government-it ought to. If not, the Government ought to come up with one that deals with this very serious abuse once and for all.

Lord Clement-Jones: My Lords, I rise very briefly to support the amendment of my noble friend Lord Razzall, signed by me as well.
	On these Benches we are very pleased to see that the House is generally much more sympathetic to amendments of this nature. Obviously, they have been redrafted to be less exclusive in terms of ousting the courts, but as the Minister himself in his letter to us said:
	"There will be occasions where the notification system is not appropriate, and it is important that we allow rights holders some flexibility, rather than tie the hands of the entire creative industries due to the possible poor conduct of some isolated parties".
	We took that on board in formulating these amendments. Clearly, we are very strong supporters of the system of graduated response, which as the noble Lord, Lord Lucas, said is being considerably improved as a result of amendments to the Bill. However, in the meantime we learn of new entrants to the hall of infamy, such as Tilly Bailey & Irvine-the second law firm which I do not think anybody has mentioned in addition to ACS:Law. We also know more about the firm responsible for the investigations, Logistep. As my noble friend mentioned, the activities of these two law firms and Logistep are an embarrassment to the rest of the creative rights industry. We have seen more letters since Committee stage which demonstrate the methods being used by these law firms, which are of a threatening nature-some six or so pages as a first letter is grossly disproportionate.
	I am delighted to be able to quote for the noble Lord, Lord Puttnam, the paragraph that the Solicitors Regulation Authority has sent to both me and the Minister in more or less identical terms:
	"We appreciate the impact that receiving letters from ACS:Law is having on individuals, and the need to bring this matter to a conclusion as soon as we are able. However, we have to undertake a thorough investigation to ensure the right outcome in the public interest".
	It has assured several noble Lords that it will keep us informed of progress.
	With respect, I mention to the noble Lord, Lord Gordon, that Amendment 100, which he talked about, is on a wholly separate issue-appeals against technical measures-and does not cover the matter in hand.
	We are pleased that the SRA has said that it will deal with this with dispatch. However, we feel something in the order of the amendments tabled by the noble Lord, Lord Lucas, or those in the name of my noble friend and myself is necessary to remedy this. It is a considerable problem for many people up and down the country and will remain so unless we make sure that the code almost invariably applies in the first instance.

Lord Howard of Rising: My Lords, I rise very briefly. We sympathise a great deal with much of what has been said, but it is an important point of principle that nothing that is put in the Bill prevents rights holders from using civil proceedings.
	The initial obligations procedure in this legislation is an additional remedy designed to tackle illegal peer-to-peer file-sharing. That point of principle is important when discussing and looking at these amendments. Amendments 16 and 31 would appear to limit the ability of a rights holder to use established remedies. If rights holders want to go to court to seek damages under existing copyright laws, then this Bill should not stop them from so doing.
	On these Benches we obviously agree with the aim of stopping unscrupulous law firms sending demanding letters to unknowing and innocent customers. However, I am not sure whether the way to stop these is to stop rights holders being able to exercise their legitimate claims in a timely manner.
	Finally on this issue, I thank the Minister for taking this matter up with the Secretary of State for Justice. While I appreciate that he will not wish to comment before the individual cases are resolved, can he give the House an update on discussion with his government colleagues about alternative means by which help can be given to protect consumers?

Lord Young of Norwood Green: My Lords, as I have expressed on previous occasions, I sympathise with the concerns-there is nothing between us on the problem. I understand the intent behind these amendments. Though I did not initially receive the letters I am sure I am being included in the loop; I get the letters now. I share the concern: I would liken them to rogue wheel-clampers, if I can use that analogy.
	There are certainly some law firms which appear to act in a way that some consider heavy-handed or unfair. However, the proper way to control the conduct of law firms is through the independent regulator, and that is what we are doing. Following discussion of this matter in Committee, we wrote to the Lord Chancellor, as has been heard, to bring this matter to his personal attention. As you know, we have received a reply from the Ministry of Justice, and a further letter from the Solicitors Regulation Authority. These letters explain that there have been complaints and a thorough investigation is under way. Like all noble Lords, I wish it could act more promptly and we could bring this to an end.
	It is fair to say that we expect that copyright owners will want to use this notification system to tackle appropriate cases. Indeed, should the Bill become an Act, the courts may choose to view the approach taken within it as an example of good practice for cases of this sort-although clearly this would be for the judiciary to decide.
	We believe that the notification system is fair and proportionate, and we hope that it will be effective. However, we do not believe it is right to remove flexibility from the courts and copyright owners in the way these amendments seek to. There will be occasions, as my noble-I nearly said friend-the noble Lord, Lord Howard, quite rightly pointed out, when the notification system is just not appropriate, and there is no justification for adding extra difficulty to those cases. I remind noble Lords that the graduated approach which we seem to accept as the right way forward was really designed to deal with the mass problems of peer-to-peer file-sharing. That is why we talked about behavioural change, and why that was appropriate. However, in certain cases this is not appropriate-for example, where people are stealing or infringing high-value copyright, or where there is a need for action to be taken more promptly-then, as the noble Lord, Lord Howard, said, we cannot deny copyright holders an alternative approach. This notification system will not be appropriate, and there is no justification for adding extra difficulty to those cases.
	The right to access the courts is a fundamental one, and to limit this in any way may infringe upon basic human rights, as well as on the free exercise of the property right in copyright itself. It is not that we do not want to be of assistance-we want to help. However, going down the route suggested in these amendments unfortunately will not solve the problem.
	I will rest on this final point, which is another reason why we cannot accept the amendments however much we sympathise with their aim. The right to take action against a person who has infringed your copyright is enshrined in international and European law. There is also a more fundamental question here: the right of access to the courts and access to redress for a civil wrong. Human rights are engaged, as well as matters of constitutional law. This is a matter that needs to be solved through regulation, not by interfering in these basic rights. It is not that we do not have a great deal of sympathy. In a way, we wish that we could do this. Unfortunately, however, the suggested remedies are not capable of being introduced, and they are not appropriate for the reasons that I have mentioned.
	I hope the noble Lord will recognise that we have treated this matter seriously and that we will continue to do so. We will continue to press the Ministry of Justice and the Solicitors Regulation Authority to act on this. In the light of the points I have made, I hope he will feel capable of withdrawing the amendment.

Lord Lucas: My Lords, as the Minister pointed out when he referred to rogue wheel-clampers, it seems to take a very long time and the suffering of tens of thousands of people before a Government will move to deal with an abuse that has some justification in fundamental law. Rogue wheel-clampers are merely enforcing their rights of private property. I suppose that bailiffs are doing an excellent job in retrieving lots of money for the public purse and for creditors. Here we have another case where many tens of thousands of people are subject to something that is not as we would wish it to be in a proper and perfect world.
	I appreciate what the Minister said about there being deeper questions here, and I understand that my own Front Bench shares those qualms. Other than an expression of sympathy, I would like to hear an expression of the determination to deal with this question if it continues or gets any worse. It would be immensely helpful to hear that from the Government and to know that this is not a permanent disfigurement on the face of copyright law and practice. If the SRA cannot deal with it, we will find some other way of dealing with it ourselves. It would be a great comfort to know that that was the Government's position.

Lord Young of Norwood Green: Perhaps I can be of help. We will continue to pursue this problem with the Ministry of Justice and the SRA. I give that assurance because we share the concerns that this problem does not look as though it will go away even if the Bill is enacted. I can give that assurance, if it helps the noble Lord.

Lord Lucas: My Lords, that is appreciated. I am sure that my noble friend on the Front Bench also shares those sentiments, but I will not press him to go outside the rules of Report. With grateful thanks, I beg leave to withdraw the amendment.
	Amendment 15 withdrawn.
	Amendment 16 not moved.
	Consideration on Report adjourned until not before 8.44 pm.

Jobseeker's Allowance (Skills Training Conditionality Pilot) Regulations 2010

Copy of the Regulations
	4th Report from the JCSI
	5th Report from the MC

Motion to Approve

Moved By Lord McKenzie of Luton
	That the draft regulations laid before the House on 15 December 2009 be approved.
	Relevant documents: 4th Report from the Joint Committee on Statutory Instruments and 5th Report from the Merits Committee.

Lord McKenzie of Luton: My Lords, these pilot regulations will implement the Government's proposal to introduce increased obligations for jobseeker's allowance customers to undertake training from 26 April 2010. Perhaps it would be helpful to explain how this fits with the current core regime for jobseekers.
	The department is currently introducing a new jobseekers regime and implementing the Flexible New Deal, which builds on the successes of the outgoing new deals, to offer a much more personalised and responsive service to jobseeker's allowance customers. The new regime offers increasing support to people during the first 12 months of their jobseeker's allowance claim and expects individuals, in return, to undertake more activities to return to work the longer they remain unemployed. This is particularly noticeable from the six-month stage in a claim, where jobseekers are required to undertake particular activities to improve their chances of finding work. After 12 months, individuals will join the Flexible New Deal which is provider-led and aims to deliver whatever support a person needs to move into work.
	Of course, the recession has made things tougher. But the Government have responded by making available up to £5 billion to provide significant extra assistance to help jobseekers find work. That means that more help is now available to everybody prior to redundancy and from the start of a claim. Those out of work for six months or more have access to new support, including retraining opportunities. Furthermore, all 18 to 24 year-olds are guaranteed an offer of a job, training or work experience through the young persons guarantee after six months on JSA.
	The Government are also introducing the new integrated employment and skills service in which early contact with Jobcentre Plus and a learning provider or adult careers services will provide the range of services to address the specific skills needs of customers and overcome employment-related barriers to work. In return for this support, the Government expect individuals to take increased responsibility and have committed to take the legislative powers necessary to pilot requiring jobseeker's allowance customers to address their skills needs as a condition for receipt of benefits. This pilot will run in 11 Jobcentre Plus districts that have already embedded both the Flexible New Deal and IES services.
	We know that skills and qualifications play a vital role in improving labour market outcomes, both for individuals and society. Those with higher qualifications are more likely to be employed and earn more than people with lower level or no qualifications. Around 4.6 million people possess no qualifications at all and 3.5 million of those fall into at least one other priority group-they are disabled, aged 50 or over, a lone parent or from an ethnic minority. The employment rate of those with level 2 qualifications or above is around 20 percentage points higher than those with qualifications below level 2 or with no qualifications.
	We want to make sure that jobseekers understand that it is not acceptable to refuse the help that could provide them with greater life chances. My noble friend Lord Leitch said in his final report:
	"Individuals must raise their sights, aspirations and motivation and invest in their own skills. Where skills were once a key lever for prosperity and fairness, they are now increasingly the key lever. The UK can only achieve world class prosperity and fairness if it achieves world class skills".
	For those out of work, the skills that they have to offer employers are critical to their chances of finding a new job. There is a direct relationship between how good a person's skills are and what their prospects are for employment. The longer a jobseeker remains on benefit, the greater the levels of support. But in return for this support the Government rightly expect individuals to step up to those requirements. However, we know that even where a customer has identified a training need, they do not always take up or complete provision to address that need. They often simply give up or lose interest.
	It is not acceptable that those who are disadvantaged fail to address the very issue that could prevent them from realising their potential. That is why we have designed the JSA skills conditionality pilots so that we can learn whether equipping people with the right training means that they can ultimately get sustainable jobs and move away from a life on benefit.
	The proposal to pilot skills conditionality was first announced in 2006 and details have been included in a series of Green Papers. Meanwhile, the Social Security Advisory Committee carried out a consultation on the regulations. We are grateful to SSAC and to those who responded to it. We acknowledge the concerns of SSAC about why the department did not conduct a full consultation on these regulations, and as a department we will continually look at how we can improve in this area. DWP is not averse to consultation; indeed there were 26 separate consultations during 2009, and there have already been six consultations this year. We take the comments of the committee seriously and the Permanent Secretary has recently stressed the importance of consultation to senior officials.
	In this particular instance, DWP quite rightly placed great emphasis on introducing the recession measures that were urgently needed to combat rising unemployment. The enormous amount of officials' time required for those measures unfortunately resulted in a wider consultation not taking place before SSAC was consulted. For this, I apologise. We do, however, consider that those who responded to the SSAC consultation would have raised similar questions to a DWP consultation.
	The Social Security Advisory Committee formally reported to the Secretary of State on 28 September 2009 and its advice was not to proceed with the pilots, as it had some concerns about the design of the pilot and the impact of sanctions. However, it made a series of recommendations, the majority of which have been accepted. These include delaying the start of the pilot to ensure resources are in place, producing a clear communication strategy for customers and putting necessary training in place for advisers.
	The recommendations that were not accepted included delaying the pilot until the IES service had been fully evaluated and reconsidering the design of the pilot. We rejected those recommendations because we believe that the evaluation approach is robust. It has a randomisation element to make sure that any differences between the test group and control group are not due to specific characteristics of the individual, such as motivation, preferences or background, but just simply due to the effects of mandation. Meanwhile, IES is fully operational in the pilot locations where skills mandation will apply. As such, we can find no reason to delay the pilot until IES is fully rolled out.
	Subject to approval of the regulations, these pilots will build on the existing IES service where jobseekers who have been unemployed for 26 weeks will have their needs assessed and if there are skills barriers they will be referred to training. In the pilots, customers will be randomly allocated to either the test mandatory training group or the control group, according to their national insurance number. The regulations will empower Jobcentre Plus advisers to refer customers in the test group to training in the full knowledge that they could incur a sanction. All the pilot areas already have the Flexible New Deal in place and this sits well with skills conditionality as this regime requires that customers increase conditionality requirements the longer they claim benefits.
	This measure was also considered by the Merits Committee on 12 January, and I will touch now on just a couple of the comments made by the committee. It was noted that the two previous skills pilots were not successful in identifying positive outcomes for customers involved. Indeed the results were not encouraging. However, the conditions under which these new pilots will operate will be very different to those which prevailed in previous trials. These new trials will be offering a wider variety of training that may or may not lead to a formal qualification, for example pre-employment skills including CV writing and interview technique, IT skills or Construction Industry Training Board training.
	Another key difference to previous pilots is the integrated employment and skills service that is already running at a steady state in the 11 pilot districts with Jobcentre Plus and the Learning and Skills Council-soon to become the Skills Funding Agency-working together on the ground to make sure customers can access training that will help them move into jobs.
	The Merits Committee also raised an issue originally made by SSAC concerning our ability to produce robust evaluation when these pilots are running concurrently with the Flexible New Deal.
	We are confident that we will be able to distinguish the effects as they have been designed to deliver very different things. These pilots will specifically measure the impact that skills training has on employment outcomes. The objective of the randomisation process is to establish two groups-test and control-that are as identical as is practical in all their characteristics. The only difference is that one group may be mandated with the threat of sanctions, and the other not. This means that the effect of the Flexible New Deal should be similar in both groups. When we measure the different job outcomes between both groups, we are in fact looking at the effect of mandation, independently of the participation of individuals in the Flexible New Deal.
	Those in both the test group and control group will be identified by a pilot marker and the customers will be tracked over a longer period-up to 2013-to look at achievement of sustained employment outcomes.
	It is right and fair that the state continues to support people during times of unemployment. However, the right to support comes in exchange for taking clear steps to improve circumstances. To help customers achieve their aspirations, we will continue to work with employers who want to recruit people with the right skills. Improving the way we work with employers by understanding what skills they need and providing relevant training to jobseekers will be a key aspect of our approach. I beg to move.
	Amendment to the Motion
	 Moved by Baroness Thomas of Winchester
	Insert from "but this House regrets that Her Majesty's Government have not followed the advice of the Social Security Advisory Committee not to proceed with the draft Regulations."

Baroness Thomas of Winchester: My Lords, at first glance this looks like an extraordinary Motion to move about something as welcome as a pilot scheme to improve skills training among those who are looking for jobs. I must say straight away that we on these Benches are as keen as anyone for those who are out of work and on jobseeker's allowance to be offered suitable training to enable them to learn new skills or hone existing skills in order to find a job. That is not the issue before the House this evening.
	The key to the reason I have moved the amendment to the Motion lies in the word "conditionality", which means that in the pilot areas certain jobseekers are going to be forced to take skills training on pain of losing a good part of their benefits if they default. My criticism of this order is based on two hazards: whether the pilots are being introduced prematurely and the nature of the pilots.
	At this point, I remind the House, as the Minister did, that the Merits of Statutory Instruments Committee has drawn these regulations to the attention of the House on the grounds that they may imperfectly achieve their policy objective.
	First, I turn to the timing of the pilots and whether they are being introduced prematurely. We are told that this pilot is different from the other pilots held in 2001 and 2004, when skills training was sanctioned. Not surprisingly, the Government are keen to distance themselves from the results of both those pilots, which showed that sanctioning basic skills training actually had a long-term negative impact on the participants getting a job. We are now told that this training will be different because of the new one year-old integrated employment and skills service, but we do not know how different or exactly what is being developed. This integrated approach has been adopted, as the noble Lord said, following the Leitch report in 2006, which identified that current skills and employment services had different aims, which meant that delivery could be complex, with an array of agencies trying to give help and advice to people. Although this integrated service is not fully operational until next year, we are told that it is far enough advanced in the new pilot areas for more satisfactory pilots than the earlier ones, which first sanctioned skills training for jobseekers, to take place.
	The Government have to their credit delayed the start of the pilots from January of this year to April, at the request of the Social Security Advisory Committee which, it must be stressed, said that this was the least that must be done if the Government were going to ignore its original advice not to proceed with the pilots at all.
	The SSAC is in no doubt, however, that this is a very risky venture and says:
	"The proposed Mandatory Training pilot is scheduled to start before the new services are fully up and running and we would question whether it is sensible to commence a complex, mandatory pilot before key services are in place and established".
	During questioning of the Minister by the Merits Committee two months ago, we were told that work-focused training in the pilot areas is to be linked to vacancies in the area. If this provision is new-and it sounds like a welcome development-should not a voluntary system at least be trialled rather than having the threat of sanctions hanging over the whole procedure from the outset?
	Is there not a danger that, with all the initiatives already being rolled out at Jobcentre Plus offices, the waters are in danger of being muddied with what is on offer and how it is being delivered? Are personal advisers in Jobcentre Plus offices in the pilot areas being sufficiently trained in how to manage this complex and expensive trial? Having read quite a bit of the recently published evaluations of the Jobseekers Regime and Flexible New Deal, the Six Month Offer and Support for the Newly Unemployed, I am not convinced that this is the case. For example, on page 162, in a paragraph about the design of the Flexible New Deal needing a more personalised approach by JCP advisers, there are some alarming findings. The document states:
	"In general, a lack of training and support for the new approach placed advisers at a disadvantage, particularly the new recruits and New Claim advisers. Such advisers often lacked awareness of the range of local provision available to which they could refer or signpost customers. Under time pressures, training was often not completed before new recruits were placed in posts and the electronic format of the training was often considered unsatisfactory. As a consequence, many advisers lacked the experience, confidence and sometimes motivation to exercise their discretion".
	On page 28, we read:
	"A recurring theme was that the time pressures imposed by the recession had curtailed the amount of training staff were able to undertake".
	The document further states:
	"Generally, the speed of change and the volume of new material posed a challenge to staff who were implementing the new recessionary measures-Support for the Newly Unemployed and the Six Months Offer. The introduction of these services was considered to be 'rushed' in Phase 2 districts and 'too much, too quickly' when combined with the Jobseekers Regime Flexible New Deal".
	These comments do not instil confidence that JCP staff are ready for yet another pilot. Is the Minister really certain that by April all will be well and all the personal advisers in the relevant districts will have received adequate training for this new and complex pilot?
	While looking at the evaluations, I see that there are also some disturbing, although not surprising, findings about sanctioning that are relevant to this debate. On page 157 we read:
	"The planned changes to the adviser service culture were seen to be developing but as yet not much adjustment had occurred. Alongside this, the expected changes in customer obligations"-
	presumably, this means sanctions-
	"did not seem to be delivered to the extent planned. In this, the early signs indicated a perceived contradiction between the advisory service giving flexible, personalised delivery through their interactions with customers, and the negative effects of enforcing obligations (via the threat of, or actual sanctioning) on the service relationship. This contradiction might prove complex to overcome".
	Later in the evaluations report, and more specifically, we are told that there is a perception that mandating activities and threats of sanctioning can be unconstructive to establishing a good adviser-customer relationship, and that some staff were reluctant to sanction. This may account for another finding, which is that claimants were often leaving interviews without fully understanding the sanctioning regime. This is certainly the experience of many CAB officers around the country.
	This brings me to the design of the pilots, about which there is a lot of concern. There are to be two groups-the noble Lord told us how it would work-one is the treatment group, where non-attendance at training could risk benefit sanctions from Jobseeker's Regime Flexible New Deal stage 3; the other is the control group, who do not risk this sanction. The groups will be chosen by randomisation; that is to say, the personal adviser locally will use the final digit of the claimant's national insurance number. An even number means that the claimant will go into one group, an odd number and it will be the other group. We are told that claimants will be told exactly what is going on, but I wish that I could fully believe this. Where the complexity comes in is the assumption that the skills needs of claimants are evenly distributed across both groups, so that apples can be compared with apples and not with pears. This will again put a lot of responsibility on to JCP personal advisers. I hope that their training on this very specific activity is adequate.
	There is to be full evaluation of this pilot. The Minister told the Merits Committee that it will tell us "once and for all" whether sanctions for training work, but I wonder whether the jobs market is stable enough for this really to be the case. We were told that pilots will not be held in areas of very high unemployment, but our chairman pointed out that one of the pilot areas was to be Lambeth, where TUC figures show that in January last year there were 29 claimants for every vacancy. I cannot believe that the figures are much better now. I should have said earlier that I am a member of the Merits Committee, which is why I talk about "our chairman".
	I note that the first of the four types of training the department is offering is literacy and English for speakers of other languages. Looking at ESOL first, if this training is to be mandated, I assume that it will be free and that there will be enough classes at various levels in all the pilot areas. Will the Minister confirm this? We know that the Government now charge for ESOL classes, so I would be interested to know whether all participants will be learning together, or whether those who are mandated will be taught separately from those who have to pay. I assume that literacy and ESOL are separate, with literacy being appropriate for native English speakers, so will there be two distinct classes, one for native English speakers perhaps to learn to read and write better and other classes for ESOL?
	Looking at training more generally on offer for these pilots, is the Minister convinced that all training providers will accept mandated claimants on to their courses? It is an absolutely vital point. The SSAC is concerned that without guaranteed access, the situation could arise whereby a mandated claimant is turned away from a suitable course. I am sure the Minister's brief will make the point that the integrated employment skills service will ensure that this is not the case, but the SSAC report is not convinced and nor am I. It says:
	"If the training and support on offer are genuinely attractive and effective there would appear to be no need for a mandatory programme".
	I make no apology for raising at this point a problem I asked the Minister, Helen Goodman, about during the Merits Committee cross-questioning in January. I was concerned about the high number of people "failing" the new work capability assessment, which has meant that more people are being put on JSA rather than ESA. This will mean that inevitably there will be some claimants who have mental health problems and some who are likely to be on the autistic spectrum. Although we know that claimants with disabilities are supposed to see a disability benefit adviser, I am not convinced that the people who fall into the categories I have mentioned will in all cases find their way to such a person.
	For example, I know of one case where a mother was not available to take her autistic son to attend an interview and was worried that his social worker was on holiday. She was told that only one change of appointment was allowed before sanctions would apply. I have just been told of another case where a claimant was on the highest rate of disability living allowance who failed his WCA with zero points. On appeal, he was awarded the necessary 15 points. Could the Minister tell us if it is really true that nine out of 10 applicants now fail the WCA? I am hearing about these cases all the time and I am sure that the Minister is too. There is a strong belief in the advice sector that the Government have given ATOS targets to fail people who go for a WCA. If this is bunkum, will the Minister refute it categorically?
	Finally, I must come back to where I started by emphasising that we on these Benches are very much in favour of skills training. We despair as much as anyone about the large number of NEETS-those young people not in education, employment or training-and believe that as much as possible should be done to try to upskill this group so that they can get good quality and sustainable jobs. However, we have grave misgivings about using the threat of sanctions to get these young people and, indeed, all relevant jobseekers, to engage with training. I beg to move.

Baroness Morris of Bolton: My Lords, we on these Benches very much welcome the policy direction of these regulations. It is absolutely right that every effort should be made to ensure that the welfare state is not a something-for-nothing concept, that its resources are protected for those who truly need them and that they are not used up by those who can work and contribute to society and the economy, but who choose not to. However, like the noble Baroness, Lady Thomas of Winchester, I have reservations about these regulations and a number of questions I should like to ask the Minister.
	First, the monitoring and review process referred to in the Explanatory Memorandum is rather vague and paragraphs 12.1 and 12.3 do not even mention job outcomes. In fact, job outcomes is the last of the four bullet points in paragraph 12.2. Can the Minister define what is meant by a successful job outcome? Are we talking about a permanent job or a temporary job? What exactly does it mean? Overall, does the Minister not agree that the evaluation should be clear and easy to understand?
	Paragraph 7.2 of the Explanatory Memorandum lists four bullet points on which training is to be modelled. They are
	"Basic Skills and English language for speakers of other languages; ... Employability skills; ... Short, job focused training of up to eight weeks; and ... Other job related provision".
	This, too, is extraordinarily vague. I wonder how effective this will be as a direction; not very, I fear. Will the Minister give us a little more detail-I know he mentioned some on introducing the regulations in the first place-about the type of training that will be provided? How does he envisage that people will be in a better position to get jobs afterwards?
	Given there is already strong criticism about the standard and content of training that is given by jobcentres, where it is often described as "one size fits all", can the Minister assure us that training will be more intelligently tailored to meet individual participants' needs? Like the noble Baroness, Lady Thomas of Winchester, I should like to ask about the qualifications of the people who assess the training needs. What qualifications or training do they have in personal development?
	What further action are the Government taking to ensure that the record number of young people, the NEETs-those not in employment, education or training-are being quickly placed on suitable training courses? Can the Minister tell us how involved businesses and employers will be in identifying the skills needed in the pilot areas? Can he provide assurances that customers will receive skills appropriate for the job market?
	However, where we are particularly worried is with regard to the time it will take to evaluate the pilot. We are in the middle of a severe recession. When do Her Majesty's Government anticipate publishing the results of this pilot? Given that the Government closed a jobcentre every week in 2008, while unemployment was rising, can the Minister assure the House that the jobcentres involved will have the appropriate resources to implement the pilot?
	The UK still lags well behind most of our competitors regarding adult numeracy and literacy. The number of people who have taken up skills for life programmes is far less than the number of adults without basic literacy and numeracy skills and progress has been limited. Does the Minister accept that a new approach needs to be taken to ensure that we do not get left even further behind? What plans are in place to ensure that this does not happen?
	Lastly, paragraph 4.3 of the Explanatory Memorandum mentions data sharing. Given the various recent blunders with data going into the public domain, when such details should not have been released, will the Minister please explain what protections on data sharing are in place?
	At a time when long-term unemployment is still rising, when more than 1 million people who are fortunate enough to be in part-time work want a full-time job and when employment continues to fall to the lowest rate for 13 years, we need bold action to get Britain back on its feet and on the way to work. That means we cannot continue with a top-down, unpersonalised approach to policy.
	I repeat that we welcome the concept of these regulations, but we have concerns about the quality, the appropriateness and the lack of individualised and bespoke training that will lead to the outcomes we all want, which are sustainable jobs and progression in work. Frankly, I have to say that we do not believe that these regulations are up to the task, considering the scale of the problem this country faces. I look forward to the Minister's response.

Lord Kirkwood of Kirkhope: My Lords, I support the amendment that has been so capably moved by my noble friend Lady Thomas of Winchester. Before I do anything else, I should just remind the House that I am a non-executive, non-remunerated director of the Wise Group, a job-provider in Glasgow.
	I also start by saying that I think the work that has been done by the Social Security Advisory Committee and the Merits Committee on these regulations is, as ever, immensely helpful. My previous incarnation was in another place, where a merits committee just does not exist, and it should take a tip-it should take many tips-from what happens in this place. The Merits Committee is extremely important and particularly at this time because there are so many statutory instruments coming through. I do not need to tell the Treasury Bench that because it has to do them all. Trying to make sense of the volume of stuff that comes out, particularly from the Department for Work and Pensions, is very hard. I am deeply grateful for the work that the Merits Committee and the Social Security Advisory Committee do in trying to interpret the importance and significance of the content of the policy that they contain.
	I, together with colleagues who have already spoken, am very nervous about these regulations, and part of that nervousness derives from my experience in the Wise Group in Glasgow. One thing that training providers tell you is that they are loath to get involved in dealing with conscripts. My noble friend mentioned that. There could be a situation where people join training groups simply in order to shelter from the conditionality regime contained in these regulations. If you are to be successful in training, you need an engaged group of people who are willing not just to turn up but to switch on their brains and think carefully about what they are being told and to do the necessary follow-up homework, whether it is English classes or anything else. If two or three people in a small group of students or clients are there merely because they are sheltering from their benefit reductions, that will create a very unhappy situation because the training group will suffer as a result. I do not think that that has begun to be understood in these regulations.
	However, I absolutely understand the need for conditionality. To use a very inelegant metaphor, it is a bit like manure. If you spread the conditionality at the appropriate dosage over the appropriate surface, it will work and be to everyone's benefit, but if you pile it on in a corner, then people will get hurt-the plants will be destroyed. I am sorry; I should have thought about that metaphor earlier.

A noble Lord: Stop digging.

Lord Kirkwood of Kirkhope: I shall move on quickly but I have made the point. Conditionality is now an important part of the regime that we are working with and everyone understands that. My noble friend made that quite clear and I concur with that view. However, conditionality has to be applied very carefully if it is to work.
	Against that background, my second point is that the balance of power-if I may put it in that rather dramatic way-that exists between the client and the personal adviser is crucial here as well. We have had many happy debates on this subject during the Committee and other stages of welfare-to-work Bills in the past, and if it is true in most other circumstances, it is absolutely true here. If this is to be a tailored, personalised service, which is what the Government lauds it and argues it to be, then at the point where the client comes into the integrated employment service, he or she needs to feel that there is an element of control-that they can make suggestions-in order to get to a better place. If that kind of approach is taken rather than telling them what they need to do, they start the journey back to work in a much better and more positive way. If we are to have a personalised system under these regulations, the personal advisers need to be sympathetic to that question overall. I want to come back to the training points that my noble friend raised, but a key point for me is that, when clients have left the interview, they should feel that they have had some control over the training requirements being offered to them.
	Thirdly, this issue is often talked about in terms of an integrated employment service and a skill, but there are different changes in the different constituent parts of the United Kingdom. That is not an insignificant point because things are done differently in Scotland, Wales, Northern Ireland and England. However, within the skills approach it must not be forgotten that a lot of clients need biopsychosocial support before they can be shown how to be a plumber. They come from very disadvantaged places and their psychological situation needs to be recognised holistically. You cannot simply sign them up to a further education college course and expect them to survive. Steps need to be taken before they reach the position where they can go into a further education college and survive. All that is important. I think that such progression is properly understood in most cases, but there will be people in this stage 3 Flexible New Deal client group who need holistic support before they go on to what everyone else would understand as proper skills training. If that is not properly observed by these regulations and by the personal advisers who implement them, the policy will not succeed.
	Distance travelled is just as important for those clients who are furthest away from the labour market as are job outcomes. In the evaluation-and I have some doubts about the suggestions for the evaluation of these pilot schemes-the distance travelled from where people are when they come into the integrated employment service towards a position where they have any hope of competing in the labour market is equally important. If we do not recognise that people need to make that journey and that those who make the transition get much closer to the labour market than they were when they started, we are not being fair to the efforts that they are making. The system needs to recognise that.
	Against that background, staff training is important, as my noble friend said, but the amount of time that clients have available with the staff after they have been properly trained is equally important. I am told various things about how often and how long clients get with personal advisers. I am assuming that the 3,000 new people whom we have taken on are all now properly trained. They have not been around for very long and I hear stories about the training being cut. However, if the training is inadequate and people are only getting 10 or 20 minutes at a time, the transformation that is necessary to get some of these clients in stage 3 of Flexible New Deal into anything approaching a trade or an apprenticeship scheme is a long, long journey and it will not start properly unless the personal advisers are both well trained and able to give the help when it is really needed.
	In my experience-and any provider will tell you this-in a journey to work, people suddenly get it. Invariably, if the process works, a light bulb goes on in people's heads and they say, "Okay, if that is what I need to do, I understand that now and I am ready to really put myself into this". If they are not into it, if they are resistant or recalcitrant, or if they are conscripts, you are not engaging with them at all. However, when the light bulb goes on, the system needs to recognise that and move quickly so that support follows and there is a successful outcome. Personal advisers need to be alive to that moment happening and make sure that they do not miss it. Lack of staff training and lack of access by individuals to their personal advisers are a roadblock to that.
	I want to make a point about baseline evaluations, which I just do not understand. I am reading from the fifth Merits Committee report, at page 9. There is a statement from the department, but it is not explained anywhere. I have never heard anything like it before. It claims that the,
	"DWP anticipate a 'projected 5% increase in attendance rates' and assume that 'for every 10 additional individuals who complete provision because of conditionality, an additional year of employment will be generated'".
	Where does that come from? Is that a guess? Is there some research? Is there any international experience that justifies that? It seems to me to be completely unsubstantiated. It is an example of how the evaluation of these regulations and the basis on which they are set up leaves a lot to be desired.
	I agree with my noble friend that the timing of these pilots is too soon. I would have been much happier if they had been at least later in the year. The autumn would have been better, because, once we have the Comprehensive Spending Review, when the new Government are in place-whosoever they are-we will see some changes that will affect the public sector workforce substantially. That will dramatically affect, I fear, the number of cases that the integrated employment service will have to cope with. Who will be the people who suffer most? It will be the stage 3 Flexible New Deal people, because they are the most disadvantaged. Therefore, I think that these pilots are premature. They are not only premature, but I am not convinced that there are sufficient resources in play to be confident that they will do the job that they seek to do. As I said, it is hard to feel confident about the methodology.
	I am in favour of trying this. As my noble friend said, upskilling people and getting them closer to the labour market is something that we all have an interest in. If my colleagues and I on this side sound critical, it is not because we do not will the end; it is because we just do not think that these regulations will do what they set out to do. If that is the case, it is matter of great concern and I hope that the Minister will respond as best he can to some of the legitimate complaints that people have made about these regulations.

Lord McKenzie of Luton: I thank the three noble Lords who contributed. I can summarise the mood of the debate as being in general supportive of the direction of travel with some concerns about some of the detail-in some cases, quite a lot of the detail. Questions were asked and points were made and I shall deal with as many of them as I can.
	The noble Baroness, Lady Thomas, spoke about concerns about conditionality, although that is now well embedded in the system of our welfare reform programmes. The vast majority of JSA customers comply with the conditions imposed. Just one in 10 has their benefits sanctioned. Research has shown that sanctions influence the behaviour of claimants. A survey of around 3,000 JSA customers found that almost half said that they were more likely to look for work as a result of sanctions. We expect fewer than 400 sanctions to be applied during the pilot. Jobcentre Plus already has a robust sanctioning regime that ensures that customers are given an opportunity to claim good cause and thereby avoid a sanction. Vulnerable customers can claim hardship allowance and all customers have full rights of appeal against any sanction decision.
	Guidance being developed for advisers will ensure that the risk of sanction is minimised by ensuring that customers' views and concerns are addressed and incorporated in the action plan, referring customers with motivational barriers to appropriate support before moving them on to the necessary skills training, and agreeing the type and duration of training suitable to address the individual customer's skills needs and to move that customer closer to the labour market. I agree with the noble Lord, Lord Kirkwood, that having willing people who want to undertake this is a key barrier. Customers will be given choice, wherever possible, over full-time or part-time training, the venue and the start date. However, where there is a skills need, doing nothing will not be an option. Explaining clearly to all customers what the pilot is about, the importance of attending training and the impact of sanctions will be key.
	Advisers will be fully trained to identify skills needs, to respond to them and to handle the randomisation of customers. An early evaluation of the IES shows that customers value adviser discussions. The noble Baroness, Lady Thomas, referred to adviser training and suggested that it was poor in the Flexible New Deal regime and the young person's guarantee. The early findings outlined will be taken into account as the JSA regime and the recession measures bed in. However, it is essential that we get recession-based support in place quickly.
	Referrals for sanctions decisions are identified by Jobcentre Plus front-line staff and are referred to a Jobcentre Plus decision-maker to look at the facts, including the customer's side of the story. The decision-maker is impartial and will consider evidence from the adviser and the customer set against the regulations and case law. If the doubt is upheld, the claim is suspended and no payment is made for the time that the individual failed to meet the conditions. So far as someone being mandated to training and the training provider not taking him is concerned, if that is not a good cause, I do not know what would be one. It would be difficult to see that situation, if it came to pass, leading to sanctions.
	The noble Baroness, Lady Thomas, said that there is a contradiction between mandation and flexibility. We do not accept that. The range of support on offer in the new JSA regime is flexible and tailored and offers a wide range of choice. It is only if a jobseeker refuses to take up any of this support that sanctions come into play. This in no way limits choice or flexibility.
	The principal objectives of the evaluation of the JSA skills conditionality pilot are to determine: whether the new measures impact on short-term or long-term job outcomes; whether the new measures impact on sustainable employment; whether they impact on starting and completing training and the acquisition of qualifications; the impact that the threat of sanctions has on customers' social and psychological well-being; attitudes to training; attitudes to work; what is required to implement the new measures well; and how any economic benefits that are generated compare to the costs.
	The evaluation of the pilot will begin soon after the pilot starts. There will be different interim reports during the life of the pilot, covering quantitative and qualitative elements, which will continue for up to two years after the end of the pilot. From previous experiences, we know that the effects of employment programmes are not immediate and that we need to observe them over a longer term to capture their effects. For that reason, the evaluation intends to cover short-term, medium-term and long-term effects. This requires more than one stage of the evaluation, some of which will happen even after the pilot has ended in October 2011.
	The noble Baroness, Lady Thomas of Winchester, referred to concerns around randomisation. A randomised controlled trial is one of the most robust evaluation tools to effectively assess the policy being piloted. It allows us to isolate the impact of other factors that might also have an effect on employment outcomes. The aim of the random assignment is to split the customers eligible for skills training conditionality into two groups, as she identified. The randomisation will occur once a skills need has been identified and relevant training has been agreed and recorded on the customer action plans. The randomisation will be done locally by the personal adviser using the final digit of the customer's national insurance number. We have committed to a clear customer strategy in response to the concerns raised by SSAC. We will inform all customers about the pilot and ask for their consent for their data to be used for research and analytical purposes when training is agreed on the action plan.
	The noble Baroness, Lady Thomas, referred to people with health conditions, particularly mental health conditions. It is not our intention, and never would be, to bully people into training, as the Merits Committee might have suggested. Those with health conditions will be able to seek specialised support from the Jobcentre Plus disability employment adviser and will be able to place reasonable restrictions on their availability for work and for any training, due to their condition. We have discussed this on a number of occasions, so the noble Baroness will be aware of what happens in relation to sanctions for customers with mental health issues. We recognise that the customer's mental or physical condition may impact on their requirements while on JSA. If a customer has failed to attend an appointment or has committed another act or omission that warrants a sanction, the Jobcentre Plus decision-maker will consider all the available evidence before applying a sanction. This can include, but is not limited to, whether the failure was caused by a fluctuation in their health condition. Every effort will be made to contact vulnerable customers before applying sanctions, to make sure that they understand what is required of them. We would not sanction someone with mental health problems without contacting them or their carer or healthcare professional first.
	The noble Baroness, Lady Thomas, asked about the training courses, in particular ESOL, and mandation. We are confident that there will be a sufficient number of courses available and we are working closely with providers to ensure that good-quality courses will be available to these customers. ESOL and basic literacy courses will be separate and mandated customers will have a training allowance. The noble Baroness also referred to the WCA. The WCA is a more accurate assessment of limited capability for work, looking at what a person can do as well as what they cannot. On 19 January, there was an official publication of WCA national statistics. Figures showed that, for all ESA claims in the quarter from March 2009 to the end of May 2009, 38 per cent were assessed as fit for work, 5 per cent as suitable for the support group and 12 per cent as suitable for the work-related activity group. The remaining 45 per cent either left ESA before the completion of the assessment or their assessment is still in progress.

Baroness Thomas of Winchester: How many representations has the department had that these WCAs are going wrong and are failing people?

Lord McKenzie of Luton: I do not have to hand the data on the range and volume of representations that we have had, but I will certainly discuss this with officials and see whether we can provide the noble Baroness with more detail.
	The noble Baroness, Lady Morris of Bolton, talked about the training on offer in trial areas. To be clear, we want to maximise the take-up of the existing provision to ensure that there is a wide range of training for customers. No new training provision has been procured. The type of provision that is being offered to customers in the pilot encompasses employability skills, as we have discussed; work-focused training; short job-focused training for up to eight weeks; other job-related provision, which is available through further education and other LSC providers; ESF-funded provision; and DWP contract support.
	Courses will be responsive to customers' individual needs, while suitability for those courses will be based on the training being appropriate to meet individuals' and employers' skills needs and being flexible enough to meet individuals' personal circumstances-it can be part time or full time. However, customers will not be required to attend training for more hours than they are available for employment or for more hours than the total number of hours for which they are available, as recorded in their jobseeker's agreement. The training must also be available within a reasonable period. Generally, part-time training can be completed before the customer is due to enter the next stage of the Flexible New Deal if they are still unemployed at the 12-month point in their claim.
	The noble Baronesses, Lady Thomas and Lady Morris, talked about the quality of training on offer. The Learning and Skills Council is responsible for managing performance in the FE sector and works closely with Ofsted, which is responsible for inspecting and reporting on the quality of all adult education and training services.
	The noble Baroness, Lady Morris, referred to past office closures and asked whether we were going to resource this properly. I smiled a little when that question came up, because we have debated on a number of occasions the support that the Government did not have from her Benches when we put £5 billion into capacity for Jobcentre Plus and into the programmes that have helped to address the challenges of the economic circumstances. I think that she said that we were in the midst of a recession, but she will be aware that some of the surveys out there show that there were signs of positive growth in the last quarter of last year.
	Just to be clear, the programme of office closures has been suspended for the time being. Past closures of customer-facing Jobcentre Plus offices took into account a range of issues, such as the impact that the closure might have on customer service and whether the work and staff could be relocated. Our customers, partner organisations, trade union staff and local Members of Parliament are fully consulted when these things are under consideration.
	The noble Baroness talked about the qualifications of advisers. Advisers in Jobcentre Plus IES districts are well qualified and experienced in identifying the skills that are needed and in tailoring training to meet them. They will also refer customers to the adult advancement and careers service for more in-depth analysis.
	The noble Baroness also talked about data sharing and data security. That is a very important point. Systems and processes are already in place to ensure that customers' personal information between Jobcentre Plus and providers is exchanged in a secure environment in accordance with the current information risk management guidance from the Cabinet Office.
	I think that it was the noble Baroness who also asked about the definition of a job outcome. We are looking for sustainable job outcomes and will need to develop the evaluation strategy to reflect this.
	The noble Lord, Lord Kirkwood, talked about the quality of training on offer. The LSC is responsible, as I said, for managing the FE sector. We will provide motivational courses to deal with customers who may be unwilling to co-operate before we move on to the main provisions. That is a route for helping people into the provision.
	Early evaluation indicated that customers in the IES trial areas welcomed the intervention. Many said that they had a warm and supportive relationship with their next-step advisers and appreciated receiving independent, professional, one-to-one advice. Advisers encouraged customers to think about new ideas and helped to reignite their self-belief and motivation to progress. As the trials have been running for more than 12 months and processes are in place, we are confident that these skills pilots have a good foundation on which to develop-in fact, partnerships have continued to improve despite considerable pressure on services due to the recession.
	I want to make it clear that the skills support can be part of the jobseeker's agreement, but it is more likely to be included in the action plan, which I accept has an element that can be enforced, a point that the noble Lord, Lord Kirkwood, was probing. He said that personal advisers need to spend time with jobseekers. We have implemented a new JSA regime, in which advisers have much greater flexibility to spend more time with jobseekers, dependent on need, from the six-month point.
	I am being nudged by my noble friend, so I had better move swiftly to a close. My apologies for not having covered each of the points raised, but I hope that I have been able to deal sufficiently with the issues that have been raised for noble Lords to support the Motion. I respectfully ask the noble Baroness not to press her point.

Baroness Thomas of Winchester: My Lords, I thank the Minister for that very full answer. I dare say that he was as surprised as I was that my noble friend compared conditionality to manure. I am just glad that nobody said "Ordure, ordure" at that point-I am afraid that that is not original. I am grateful to the noble Lord and to my noble friend for his support, and to the noble Baroness, Lady Morris. The contradiction between personalised help and sanctions was raised in the evaluations-I did not make it up. The evaluations pointed out the contradiction and showed that a lot of personal advisers were not happy about on the one hand being very helpful to their clients and on the other hand having to run the sanctions regime at the same time. However, all I can do is to wish the pilot success. I shall read the Minister's answers in Hansard. In the mean time, I beg leave to withdraw the amendment.

Amendment withdrawn.
	Motion agreed.

Digital Economy Bill [HL]
	 — 
	Report (1st Day) (Continued)

Amendment 17
	 Moved by Lord Whitty
	17: Before Clause 4, insert the following new Clause-
	"Objective of sections 4 to 16
	The objective of the measures in sections 4 to 16 is to move to a lawful means of access to copyright material for consumers and businesses and to reduce unlawful file-sharing and other forms of copyright infringement."

Lord Whitty: My Lords, I had intended to make quite a substantive intervention on this matter, but in view of the time and the distinction of the audience-though not the volume of the audience-I shall try to keep it reasonably short. However, it goes to the heart of the Bill and my concerns about the Bill. I appreciate, as others have also said earlier in the debate, that the Government have come forward with a number of amendments that reflect the fact that they listened to what was said in Committee about the inadequacies of some of the procedure. They have particularly improved the early parts-stage 1 of the procedure-for which I am very grateful that. I declare my interest, if I have not already done so, as chair of Consumer Focus.
	From the view of the subscribers and those who use digital access to copyrighted material of various forms, this appears to be a seriously draconian Bill. It seems to demonstrate a spirit that is very different from the general tone of Digital Britain and the Government's general approach to developing the digital economy. In those, the Government are in favour of accessibility, inclusion, innovation and competition. In the Bill-in Clauses 4 to 16 and perhaps in Clause 17 as well-we go straight into what is effectively a sanctions regime which is protectionist, which will lead to exclusion if it is successful, and which is likely to alienate a significant number of consumers, particularly young consumers, of digital services for music and for other forms of digitalised copyrighted material such as sport, drama and so on.
	This is bad business for the rights holders and bad politics for the Government. It is not sensible to alienate a whole generation-unless you are giving an alternative. The Government have an alternative, and occasionally they talk about it. This apparently innocuous motherhood-and-apple-pie clause which I am proposing in Amendment 17 says that the Bill's objective is not to knock on the head as many unlawful file-sharers as you can find but to shift the burden of file-sharing transactions from the unlawful market in copyright material to lawful means of access. There are lawful means of access. About half of those who admit to unlawful file-sharing also have some access to lawful forms of file-sharing. Quite well known, generalised new business models are coming on line: we have mentioned Spotify here before, but there are others. There are 20-odd quite general forms of relatively cheap, relatively accessible and relatively flexible ways of getting at most copyrighted material. It ought to be the Government's objective in their policy to move the bulk of this market to those lawful forms of access. Instead, propaganda on the Bill from the Government, and particularly from the music industry, is about clamping down, restricting and ultimately having sanctions that are disproportionate to the offence.
	It would help to enhance the acceptability of this general approach among consumers and consumer organisations if the Government recognised that their objective is to move people to lawful forms of access. We would then be dealing with what should be a reducing problem. At the end of all that, there will of course still be some who engage in unlawful file-sharing. However, their number will probably be reduced provided that the lawful service is reasonably cheap and flexible. They will probably largely be people who are making significant money out of illegal file-sharing, or people who are manic, mega-serial infringers. We will still need measures to deal with them.
	I would have preferred a strategy from the Government that recognises that it will take time to move the bulk of these transactions into a lawful market. This strategy would recognise that serious sanctions are still needed but that they do not necessarily have to involve going through the kind of procedures that we were talking about under the present system-the threats from lawyers and court action. It would, however, deal with the residual problem.
	Perhaps I may underline the problem that one faces with consumers at the moment. Consumer Focus has recently conducted a small survey of people's understanding of these matters. Three-quarters of consumers know that they do not understand what is lawful and what is unlawful. We took three transactions which are actually unlawful, one of which is copying a CD or DVD which you have bought to another format so that you have a copy in more than one location. Three-quarters of people believe that that is legal. One-quarter recognises that it might be unlawful, and 86 per cent do not believe that it should be unlawful. You get similar results on similar format shifting.
	With this level of ignorance of the law, and with consumers adapting to the new technology rather faster than institutions and businesses, it is not surprising that the threat of intervention-a temporary closing-down, throttling, suspension or reduction of internet connections in order to enforce that-meets with significant hostility. We should go back to a strategy that is aimed at moving everybody onto a lawful system, and which emphasises that, rather than the burden of this Bill, in which we now have 17 or 18 clauses on sanctions. It includes nothing about a lawful system, nothing about support for the creative industries and nothing about making access easier and more flexible.
	The Government ought to think about re-presenting the Bill and their strategy in that regard. A small step in that direction at this stage in the Bill would be to put an objectives clause at the beginning of the Bill, before going into the sanctions sections. There may be better ways of drafting this clause, and I would be delighted if the Government came up with better ways of drafting it. However, it would be a small but significant step in making their whole approach rather more palatable than it is to me at the moment.
	I therefore hope that the Government, if not immediately grabbing this opportunity tonight, will think that there is some merit in spelling it out here, and that there is some merit in re-presenting what they are doing. In the long run, it would be of benefit to the rights holders as well as to consumers and the Government. That is the intention of this clause, and it is pretty central to the strategy for the Bill. I beg to move.

Lord Puttnam: My Lords, perhaps I may add to what the noble Lord, Lord Whitty, has just said, because I basically agree with just about everything he said. I have been enormously influenced during the Bill's passage by the noble Lord, Lord Lucas, and by several things that the noble Lord, Lord Whitty, has said. I want to make a point that is, certainly to me, terribly important. I have learnt one thing during the Bill's passage-the absolute indispensability of pre-legislative scrutiny. The Bill has suffered grievously from not having been scrutinised by a group of the entire Chamber.
	I have been privileged to chair two pre-legislative scrutiny committees. What actually happens is that a relatively small group of people from all sides of the House sits down, goes through the evidence and interrogates it. It finds the areas on which it agrees and then offers solutions to the Government that we hope not only are palatable but move the process on. One of the more dispiriting features of the seven days that we spent in Committee was how much of the time was spent arguing over and discussing things that could so easily have been dealt with by a small group of peers from all parts of the House. If there is one great lesson to take away, it is that the House should not accept Bills like this without provision for pre-legislative scrutiny.
	In that sense, I absolutely agree with the noble Lord, Lord Whitty. What will end up leaving this Chamber-probably lacking Clause 17, which in many respects is a pity, although I understand the objections to it-and going to the Commons is a Bill that none of us is particularly proud of. It will be a spatchcock that does part of the work it was intended to do but not all of it. I am absolutely convinced that, within the next two or three years, there will be another Bill before this House which will be created to deal with the deficiencies of the present Bill.

Baroness Miller of Chilthorne Domer: My Lords, having had the privilege of sitting on these pre-legislative committees to which the noble Lord, Lord Puttnam, referred, I agree absolutely with him.
	I also agree with the substance of the amendment, as noble Lords would expect, as I have added my name to it. The noble Lord, Lord Whitty, is right that it is a great shame that the Government have not laid out a more positive objective before moving on to more punitive aspects. Without having that objective clearly in the Bill, I am worried that some of the resources that should be going into educating the public will be lacking. The Minister will be well aware that the Government's rollout of their programme that now appears on the edge of our hotmail and other places -the zip it, block it, flag it-is exactly the sort of educational programme that should have preceded measures like this by a good year or 18 months. Only in that way can we start to get the message through to the generation that the noble Lord, Lord Whitty, talked about. The Government have got it the wrong way round. They should have run the educational campaign, measured whether it had had sufficient impact, except against serial offenders who do it for commercial gain, and then introduced the sort of measures aimed exactly at them rather than the occasional downloader or the institutions that we shall no doubt be discussing later.
	It is a pity that the Government did not commence their educational campaign well before bringing in these measures. I can understand why they have introduced this Bill now; they want to hurry it through before the election, which is understandable, but the necessity for the educational campaign has been known for a long time. It is a pity that they have not embarked on it. What resources will the Government be allocating now for an educational campaign based on what the public need to know about what is and what is not legal? I am glad that the noble Lord, Lord Whitty, included the results of his survey because it highlights the need for the Government to have a quick and comprehensive campaign on the issue.

Lord Maxton: My Lords, I confess that I am one of these people who on occasion does not understand whether something that I want to do on the computer is legal or not. For example, I get e-mails from a company called 3B Software which offers for a small annual sum of about £30 unlimited access to television stations round the world and to as many films as I want to watch. If I am paying, is it legal? I do not know. I do not know whether if I took the offer from that company it would be legal. I would be paying for it but I do not know whether the company has the copyright on the films or television programmes that it is offering.
	The noble Lord's amendment brings out certain things about the legislation. I was going to refer to the present but I am not sure whether the clauses are about the present; they are more about the past, and they certainly do not take account of the future. I have Virgin Media at my home in Hamilton in Scotland and I can get 50 megabytes broadband. By the end of this year I will be offered 100 megabytes broadband, which will allow me to stream-not download-HD quality television or film direct on to the computer. Noble Lords may ask who wants to watch a film on computer, but if I can wireless it to my television set I will be streaming. Again, I am not sure whether watching a streamed film is legal as opposed to downloading a film which is illegal. I hope that somebody can enlighten me on that.
	Equally, we are all going to increasingly download and save on to Cloud technology. We are not going to have it on our own hard disks; we are going to have it somewhere up in the air. I am not sure whether the technology we are talking is taken account of in these clauses.
	I will finish with a point about music. Some pop people have woken up to the fact that they cannot make money in that way, because of illegal downloading and the rest of it; they sell their music direct to customers on the internet. You download the piece of music and you pay them for it. You do not go through a music publisher or whatever. Pop stars now recognise that they no longer make their money from selling records; they make their money from the records publicising their concert tours and by appearing live in concert. That is the way in which it has gone. My noble friend is quite right. We have to look forward to see how on earth we can ensure-because I think quite rightly that those who produce artistic goods should be paid for them-that we can do that without penalising those who are not sure whether they are dealing with legal or illegal matters.

The Earl of Erroll: My Lords, very quickly, I, too, support this. The noble Lord, Lord Puttnam, made a very valid point. Things of this complexity should not just be suddenly presented here in Committee. Sometimes, even though we may not really disagree, we will appear to be confrontational because of positions we take on particular amendments on the Floor of the House. I certainly do not disagree with him in many respects but I may about some of the detail and the unintended consequences of some of the things that we are putting in to try to achieve a desirable outcome.
	The noble Baroness, Lady Miller, hit the nail on the head-we should have done the educational campaign first. This amendment is about sending out a message, which is a good point. However, if you look at it, Clauses 4 to 9 are about sending out a message-sending out the letters. As the noble Baroness, Lady Miller of Chilthorne Domer, said, this is trying to do the education, but we are a bit late. Clauses 10 to 14 are the punitive bits-the cracking of the whip. Then we have the bit about how we divvy up the charges, and some administrative stuff. We are told by the Minister that all those clauses are about sending a message. That message is not a very kind message in the way that it has been phrased in this Bill, which we expect to become an Act.
	It would be much nicer to put this up front, so that people realise that there is a desirable purpose in this and that it is not a hostile Act the entire way through. I refer to the discussion of the previous three amendments, which were all about using an existing system of remedy which exists for the rights holders, and which is not to be removed from them. This is a very effective way of dealing with serious offenders. Take them to court-why not? We do not want to remove that from them. We understand from both front benches that we need to leave this remedy in the Bill.
	If we are going to leave this remedy for a crackdown on serious offenders through the civil courts, you start to wonder, "Why do we need this new method?". Maybe we should use the existing system, as promoted by ACS:Law and others, and carry it through to prosecution. This sounds a bit illogical, I am afraid, and it may sound slightly muddled, but it is not. What message are we are trying to get out? At the moment, it is very muddled. On the one hand, we are leaving in place all the existing remedies for serious offenders, which could be used right now, and now we are putting a whole lot of things in-to frighten minor offenders, I presume-because they are presumably not necessary for major offenders. I therefore think that this clause is essential to explain why we are doing it, and what we are really trying to do for the future. Without it, this Bill, to be honest, will be ridiculed.

Lord Young of Norwood Green: My Lords, while I can agree with some of the sentiments expressed in the suggested new clause, I do not think that in practice it adds anything to the Bill. I listened carefully to my noble friend Lord Whitty. I can understand the use of a bit of hyperbole to make a case, but to say that we are moving straight into a protectionist regime and sanctions is a misconception and an unreasonable description of what we have spent many days discussing. We were adopting an educationist and gradualist approach. We are not doing anything threatening. We would send out a very modest advisory letter, which was exaggerated. As regards saying that we are moving into protectionist technical measures, we are not doing that. It would take a year before we would even consider them, which would be after an Ofcom report. As on many occasions, I plead for a more measured analysis of what we are trying to do.
	To address the noble Baroness, those letters are part of the educational campaign. I am afraid that I cannot follow the logic or rationale of the noble Earl, Lord Erroll, who wants to take everyone to court now. I thought that we were moving away from that. He said that we do not need this and that we could just use the measures. Millions of people are engaging in peer-to-peer file sharing, as we have discussed on numerous occasions. We know that in many cases these people do it because they think that that is what we do on the internet. We know that there is a need for an educational process for those people, which is why we have adopted this gradualist approach.
	On several occasions, we have made it clear that the reason for this part of the Bill is to reduce significantly the level of online infringement of copyright, not just because widespread unlawful activity should not be condoned but, I should like to stress, because we see it as a vital ingredient in doing what my noble friend Lord Whitty wants; that is, to develop a flourishing and sustainable digital economy where people gain the fruits of their labours. My noble friend Lord Maxton also seemed to think that.
	As to whether streaming is legal, it depends on what it is used for. There can be legal and illegal examples of streaming. Where a streaming service is licensed by the rights owner, it is legal. Most iPlayer viewing is streaming. But unlicensed streaming will not be legal. I cannot pronounce on the services for which my noble friend is paying.
	Alongside enforcement, which properly remains at the heart of the responsibility of the owner of the copyright, has to be education, with which I agree, and the development of attractive legal alternatives. There are quite a few legal alternatives out there. It is not as though there are not any. We constantly talk about an environment in which there are no legal alternatives. It is just that the illegal alternative has become an attractive first option and changing that will take a bit of time and education. That is exactly why we will not move into sanctions early on.
	However, while the Government's purpose is very clear, there is no need to include a new clause as proposed by the amendment. The clauses speak for themselves in terms of their effect, which includes elements within the progress reports produced by Ofcom that will track the efforts of copyright owners to ensure that they play their part in this. We are not expecting copyright owners to go down just one route, but also to develop the alternative. The proposed new clause would have no effect and we believe it to be unnecessary.
	As to the contribution from my noble friend Lord Puttnam, with whom I usually find myself in agreement, in an ideal world perhaps we would subject this Bill to pre-legislative scrutiny. But I can recall some of my noble friends and Ministers telling me that, even where we have had pre-legislative scrutiny, it has not stopped hundreds of amendments-as though there is a process of collective amnesia. I would not decry it because I can see the benefit of what my noble friend has suggested. Where perhaps I disagree slightly is the description that this process of scrutiny is a spatchcock. Of course, it will change. We have submitted dozens of our own amendments. Why? Because we are reflecting the genuine concerns of the House. However, that does not mean that the essential structure of the Bill and what it is trying to achieve will not emerge at the end of this process. With or without Clause 17, it still has a very important purpose. I see I have spurred my noble friend-

Lord Puttnam: I gather I am allowed to stand by way of explanation. My point is that as a House-and I certainly speak for myself-we have been subjected to an extraordinary degree of lobbying. The problem is that we have had no opportunity to look at that lobbying in a sensible and interrogative way and decide which of it is valid and reasonable and which is pure hyperbole. That is what has been missing. Many of us in this House have come in having just had our ears bashed-either by the record industry or some other aspect of special pleading. The House has not been protected with a proper interrogative process by which we, as Members of the House, can come to this Chamber fully cognisant of the things we have looked at and believe we can advance on. The lobbying process that has gone into this Bill has been quite destructive and has done none of us very much help at all.

Lord Young of Norwood Green: There are aspects of my noble friend's contribution that I probably could not help but agree with, but it is a fact of life: when we have legislation like this inevitably there will be lobbying.
	To conclude, we do not believe that this amendment will add to the Bill. The clauses speak for themselves, and we think we have got the gradual approach right. We are concerned to ensure that the legal alternatives develop, and we believe that the gradual approach we advocate will encourage the development of what my noble friend Lord Whitty seeks to achieve. In the light of the clear statement of our intentions, I hope that my noble friend will feel able to withdraw his amendment.

Lord Whitty: My Lords, I am very appreciative of those who spoke in support of this amendment or something like it. The Government have to take on board the range of views which were expressed here.
	My noble friend Lord Puttnam is very wise to say that this should have been subject to effective pre-legislative scrutiny. My noble friend the Minister is also very wise not to give my noble friend Lord Maxton any detailed legal advice-he might find himself in serious trouble if he did. That illustrates the problem: people do not understand it. As my noble friend Lord Maxton told us, he has been an aficionado of this area for at least two decades, possibly more, and he does not know whether he is operating legally or not.

Lord Young of Norwood Green: We will educate him.

Lord Whitty: Exactly. My noble friend the Minister says that education is the first part of this Bill. I have said the Government have made improvements to the first part of the Bill-roughly Clauses 4 to 7-but it is still the first stage of an enforcement process. The first letter a subscriber gets is, "It appears that an infringement has taken place". That is not education. It may turn out that he will learn something from it, but it is not education. It is a threat. The problem with this approach is that it is a serious threat. Part of the music industry and other industries have behaved in a gung-ho way: they have the Government and indeed the Opposition on side to wipe out this problem by getting the ISPs to do it for them.
	It would have been far better for all concerned, including consumers, if we had had a proper education process up front, as the noble Baroness, Lady Miller, has said. If we had explained the situation and given support and marketing to the lawful process, we might have persuaded some of the lawful processes to market themselves rather more effectively. I do not suggest that we go down the road that President Sarkozy now appears to be going down. Recognising that his approach, which is similar to this one, ain't going to work, he has now decided to subsidise the purchase of hardware in terms of CDs and DVDs at some expense to the French taxpayer. I am not suggesting we do the same here. But at least he has recognised that simply intervening on the sanctions side will not work.
	This is a graduated approach, but we should first inform and educate. Next you should start warning people and then take action with the residual problem. The main thing is to develop lawful, accessible, cheap, understandable, well-known forms of lawful alternatives. They are there. Everybody is right to say that they are already there, but they need developing and they need to be made more attractive and more automatic. They are getting better. My noble friend said that people who have recourse to unlawful file sharing take the easiest approach, but at least in some areas some of these lawful processes are now becoming the easiest way to do it. That is exactly what we want to develop and what the Government should have been doing.
	If the Government are not prepared to accept the amendment, I shall return to it or it should be considered in another place. It was a whole new presentation of the Government's approach. At the moment, the Government may think that they are being very mild, but out there is a big stick on behalf of vested interests. That will not endear them to the population nor will it endear the population to the creative industries that we are hoping to stimulate as a result of this.
	I will withdraw the amendment tonight because I do not think anybody wants a vote, but I have received sufficient support to return to it at a later stage or in another place. I beg leave to withdraw the amendment.
	Amendment 17 withdrawn.
	Clause 4 : Obligation to notify subscribers of reported infringements
	Amendment 18
	 Moved by Lord Whitty
	18: Clause 4, page 6, leave out lines 7 to 11 and insert-
	"( ) infringement of the owner's copyright has taken place through a subscriber's IP address"

Lord Whitty: My Lords, this is an even simpler approach to make the Government appear a little less harsh. As we move on to the first stage notification, the present text in Clause 4 states:
	"This section applies if it appears to a copyright owner that ...a subscriber to an internet access service has infringed the owner's copyright by means of the service".
	We had lengthy debates in Committee about the fact that the subscriber may well not be the perpetrator of the infringement and how you identify where the real issue lies. A more neutral approach to that in the text of the Bill which says that a subscriber has infringed would be to use my terminology and say that it appears that an,
	"infringement of the owner's copyright has taken place through a subscriber's IP address".
	That is actually a more accurate description of how it would be brought to the attention of the copyright holder and the ISP. It would be a rather softer approach by the Government and might help to turn those first notification letters into a slightly more educational and less threatening tool. I hope that the Government will accept that this is a sensible modification of the approach. It does nothing else to change the Government's intention. I hope that at least consideration will be given to this alternative wording. I beg to move.

Lord Howard of Rising: My Lords, there are a number of instances where the subscriber may well not be the infringer. For example, in the hotel industry, the hotel is a subscriber to an internet service. What happens if a number of different guests use the service to infringe copyright? The hotel will presumably be subject to the proceedings established by the initial obligations code. Is it expected to communicate with former guests about these obligations? Is the hotel expected to pass on a copyright infringement order or notice to a guest? Some clarification from the noble Lord would be very helpful in reassuring this industry.

The Earl of Erroll: I have certainly had some letters about this because there are some concerns that this may turn hotels and other people into communication service providers, because they will have to start to monitor who is logged on and when and they will have to have software that does that. Does this make them into CSPs along with all the obligations and everything else that that entails? Some clarification as to what this might imply for libraries, hotels, and other public places would be very useful.

Lord Young of Norwood Green: My Lords, this amendment is an interesting one since it recognises that from the perspective of the copyright owner collecting the evidence to form the copyright infringement report, there is no way of knowing whether it is the subscriber apparently infringing copyright, somebody within their household or organisation, or somebody parked outside in the street piggybacking on the connection. All that the copyright owner will see is an apparent infringement taking place-I stress an apparent infringement taking place-at a particular date and time, via a specific IP address. They will not know the circumstances because they will not know who it is. In many ways the reason for this legislation is to allow the copyright holder to take action that connects information about the infringement to the subscriber responsible for the connection while maintaining anonymity.
	However, while agreeing that this is what happens in practice, the text that the amendment proposes to delete is useful. It makes clear that it may not be the subscriber that is personally responsible for the infringement and as such also makes it plain that, in those circumstances, the provisions continue to apply-although of course we have listened to what noble Lords said in Committee and have made it much clearer how subscribers can deal with that. In fact, we have sent a lot of information out to that effect.
	My noble friend might suggest that the amendment encompasses the existing text and says it in fewer words-a clear profit. Unfortunately, while I admire the succinctness of the amendment, it uses the phrase,
	"through the subscriber's IP address",
	which is not an accurate description, as we have said on a number of occasions. The IP address is dynamic, generally speaking, changing each time a subscriber logs on, while the amendment implies a fixed point of contact. Since the amendment does not seek to change radically what is covered by the existing text but introduces potential difficulties, I hope that my noble friend will agree to withdraw the amendment.
	In relation to the point made by the noble Lord, Lord Howard, the position of hotels is the same as that with cafés, universities and libraries. Provided the hotel made suitable arrangements to ensure whatever security it needed to adopt or whatever conditions of service it put down to its guests-the levels of access-that would be a reasonable defence. It was on this that we gave quite a lot of information and I would refer the noble Lord back to that. We were trying to respond to the genuine concerns that were expressed about a whole range of different scenarios; universities, libraries, cyber-cafes, hotels et cetera. We made it clear that that there are reasonable actions that could be taken; and if those actions were taken, that in itself would be a reasonable defence. I refer the noble Lord back to the information that we have already circulated.
	In the light of what I have just said, given the technical problems with the amendment, I hope that my noble friend will feel able to withdraw the amendment.

Lord Whitty: My Lords, I understand what my noble friend is saying. However, the subscriber's address identifies the potential infringement, so I am not entirely sure that his objection to my wording is correct. No doubt his technical advisers can advise him on a more apposite wording to replace the subscriber's address. However, that is not the point of the amendment. The point is that it does not imply-the wording of the Bill does imply this-the clear guilt of the subscriber, either by perpetrating the infringement themselves or by giving permission-actively or passively-to somebody else to do it. That is the point of the measure. The reference to a subscriber's address may not be correct, but there must be a reference which covers that point.

Lord Young of Norwood Green: I really must correct my noble friend. We are not implying guilt at all. We talk about an apparent infringement. We cannot indicate guilt because we do not know whether the subscriber was the person who perpetrated the act in question. I have made that clear and I wish that my noble friend would not imply that certain things are in the Bill when that is manifestly not the case. We take great care to ensure that the first letter-the first approach-talks about an apparent infringement. That is not by any means an indication of guilt.

Lord Whitty: Perhaps my noble friend's life experience is different from mine, but if a policeman knocks on my door and says, "It looks as if you've got some dodgy gear in your shed", I consider that is an implication of guilt, even though I may have a perfectly adequate explanation for it in the long run. It is a matter of where you start from. That is what I object to. The Government should think again and not have a knee-jerk reaction to something that is intended to be helpful. I am almost being provoked to call a vote, but I will not. I will withdraw the amendment, but I hope that my noble friend will give further consideration to making a change in this area.
	Amendment 18 withdrawn.
	Amendment 19
	 Moved by Lord Young of Norwood Green
	19: Clause 4, page 6, line 22, after "gathered;" insert-
	"( ) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered;"

Lord Young of Norwood Green: My Lords, I intend to speak to the 10 amendments tabled by the Government that deal with the information provided to subscribers in the notifications they receive, and the time limits associated with the notification process. I will also respond to the amendments proposed by the noble Lord, Lord Lucas, that cover the same ground.
	There was some interesting debate in Committee around the extent to which we should leave the detail of the process to the code, which would have the benefit of direct stakeholder input and consultation, and how much should be included in the Bill to ensure a minimum level of protection for subscribers. While the Government continue to see merit in leaving much detail to the code, we listened to the arguments made and the amendments laid by the Government are the result.
	The amendments we have put forward in the area of notifications and time limits do, I suggest, strike the right balance. They ensure that subscribers who receive a notification have the information that they need in order to appeal if necessary, that the first-level notification does not include information about potential technical measures, underlining the advisory nature of the letter-I hope that noble Lords found the illustrative letters helpful in that regard-and let the subscriber know what the position is generally as regards issues such as potential legal action by copyright owners.
	The noble Lord, Lord Lucas, will also have noted that we have adopted his proposal of including provision for the name of the copyright owner making the report to be included in the notification, and I hope that as a result he will agree to withdraw his own amendment in this area. However, we do not agree with his Amendment 28, which proposes that marketing information may also be sent with notifications, not because we do not agree with it but because in our view there is nothing to stop such information being sent as it is-and in practice we would be rather surprised if it was not. I hope that the noble Lord, Lord Lucas, can agree to withdraw that amendment also. Certainly, we wholeheartedly agree with the underlying point that copyright owners must step up and play their part by ensuring that there is plenty of attractive legitimate content available.
	These amendments also set limits on how long the process can take, with a maximum of a month allowed between the date evidence of the apparent infringement is gathered and the copyright infringement report being sent to the internet service provider, and the same period being set as the limit between a copyright infringement report being received and a notification being sent to a subscriber. That may be regarded by some in industry as challenging, but there is a balance to be struck here and we think this is only fair to subscribers-of course, we hope and expect the actual period to be considerably shorter than this.
	I hope noble Lords agree that this moves this part of the Bill in the right direction and recognise that we took account of a number of serious points that were made in the previous debate. I beg to move.

Lord Lucas: My Lords, of course, I am grateful for Amendment 22 being superseded. I am also grateful for the Minister's words on Amendment 28, which very much answer the case. I shall pick up his words at a later moment because it does seem to me very important that the industry offers ISPs something that they can sell to their customers. They must have a product to offer in substitute for what their customers are doing at the moment. This is an enormous marketing opportunity.
	At the moment, the copyright owners are being extremely difficult, as I said at the last stage, about a test of this in one particular area, to see whether an ISP can successfully offer rights packages to its users-which has been successful in Denmark, for goodness sake, so why are they dragging their feet here? However, at least the Government say that they are expecting the industry to do this. I very much hope the industry is listening and that, when the time comes to send out these letters, there will not be an ISP in the land which is unable to offer a legitimate package to its subscribers, presumably for a cut of the take in doing so.

Lord Clement-Jones: My Lords, it would be churlish not to welcome amendments, which I think are considerable improvements to the Bill, particularly in terms of the additions to the copyright infringement report requirements and the notification contents. I think the Minister has made significant progress and improvements to the Bill as a result of these amendments.

Baroness Miller of Chilthorne Domer: My Lords, I think the Minister in introducing his amendments actually proved the point made by the noble Lord, Lord Whitty, on the last amendment, because the amendments that the Government are now introducing talk of the gathering of evidence and so on, which are all things that happen before you get found guilty of something. The very language that the Minister uses is wrong, and I am sorry that the noble Lord, Lord Whitty, did not choose to call a vote; but I can understand why he did not.
	I rise to make a point that BT has made to us in its briefing. Quite clearly, it is still deeply unhappy, despite all of the government amendments. I wonder whether the Minister is aware of the depth of its unhappiness. I must say that I have never found it in the past to be an organisation that has been anything other than reasonable and logical. BT says that,
	"it is not clear which of the definitions of 'subscriber' or 'internet service provider' would apply to account holders such as businesses, organisations and householders whose internet connections are or can be used to provide internet access for many people".
	It feels that the new amendments that the Government are introducing at this stage are not much more than cosmetic. I wonder what consultations the Government have had with BT and whether it came up with some more substantial suggestions that the Government have chosen to ignore.

Lord Young of Norwood Green: Not to my knowledge. I think it is unfortunate that there seems to be a slight dichotomy of opinion there between the Front Bench and the Back Bench, with one welcoming the amendments. I say to the noble Baroness that the gathering of evidence does not mean that somebody is guilty, so I do not accept that point. I cannot tell noble Lords about any suggestions from BT.
	We submitted the amendments in good faith in the light of the serious points that had been made in previous debates and, from other points that have been made around the House, it is obvious that they serve a purpose. Therefore, I make no apologies for the amendments. I think that they are a constructive response to a constructive debate, and it is unfortunate that they do not seem to please the noble Baroness.
	Amendment 19 agreed.
	Amendment 20
	 Moved by Lord Young of Norwood Green
	20: Clause 4, page 6, line 27, at end insert-
	"( ) Any notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report."
	Amendment 20 agreed.

Lord Haskel: I cannot call Amendment 22 if Amendment 21 is agreed.
	Amendment 21
	 Moved by Lord Young of Norwood Green
	21: Clause 4, page 6, line 30, leave out "made by a copyright owner;" and insert-
	"( ) the name of the copyright owner who made the report;"
	Amendment 21 agreed.
	Amendment 22 not moved.
	Amendments 23 to 25
	 Moved by Lord Young of Norwood Green
	23: Clause 4, page 6, line 32, at end insert "that shows the subscriber's IP address and the time at which the evidence was gathered;
	( ) information about subscriber appeals and the grounds on which they may be made;"
	24: Clause 4, page 6, line 34, after "advice" insert ", or information enabling the subscriber to obtain advice,"
	25: Clause 4, page 6, line 35, leave out from "advice" to "; and" in line 36 and insert ", or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use"
	Amendments 23 to 25 agreed.
	Amendment 26
	 Moved by Lord Whitty
	26: Clause 4, page 6, line 36, after "telegraphy;" insert-
	"( ) any allegation of financial gain to the subscriber as a result of the alleged infringement;"

Lord Whitty: My Lords, I shall speak also to Amendment 57. We are still talking about the initial letter of notification and the evidence that is required to issue such a notification. I know that the Minister was getting a bit irritated with the noble Baroness, Lady Miller, but such a notice suggests that we are moving into sanctions, and for sanctions you need to differentiate motivation in the long run.
	This is the beginning of a process. It may be a light-touch beginning but, in the end, if compliance is not achieved, we are into sanctions in stage 2. Therefore, if evidence is being gathered at this early stage, it is useful to identify the motivation of the unlawful downloader or file-sharer. I simply suggest in the amendment that, if there is an allegation that the individual is making money out of this breach of copyright, that should be known at the earliest possible stage. That will then have consequences regarding the nature of any sanction if there is continuous non-compliance at a later stage. That seems to me very sensible and it is a way of sorting those who are currently engaged in unlawful file-sharing from the eventual hard core whom this regime will have to tackle.
	The amendment may not be in quite the form that the Minister would like but it would provide a useful differentiation and would be a useful addition to the background evidence for the first intervention. It would imply that not everyone was as guilty as everyone else in this respect. In other words, if you were making money from unlawful file-sharing, ultimately you would expect a heavier sanction if you did not comply than if you were a casual user. It is sensible to establish that at the beginning and I hope that the Minister will at least have a look at the possibility of including such an amendment. I beg to move.

The Earl of Erroll: This seems extremely sensible and it can only help the process later.

Lord Young of Norwood Green: My Lords, it is worth recalling that the purpose of the Bill is within these clauses. Online infringement of copyright through the unlawful use of peer-to-peer file-sharing networks is a civil matter where there is widespread sharing of copyrighted material without any remuneration involved either to those sharing the files or, alas, to the owners and creators of the copyrighted material. As I have said before, moving towards any sanctions is quite a long process. They are taken only against serial infringers and therefore someone would have to have quite a track record before any sanctions were taken. It must be remembered that we were talking about not even introducing technical measures until at least a year after we had seen whether the gradualist, educated process had had any effect. I am going to keep returning to this so that we do not create the impression that sanctions are going be taken against people in a very short time-that is not the case.
	On the substance of what my noble friend is trying to do-and I understand the direction of travel-it is extremely difficult for copyright owners to address such widespread activity, which is why we have introduced the provisions in this part of the Bill. In many ways, it is easier and simpler when there is money involved since, if somebody is making money from copyright infringement, it becomes a criminal offence and a different set of procedures comes into play. There is also a clear target and, as in the simple instruction to detectives, the same thing would apply to enforcement authorities-"follow the money". That is not what we are talking about here. Peer-to-peer file-sharing is not necessarily about people making money out of it; it just happens to be that what they are doing is illegal. So it would be pointless and even misleading to add this to the list of notifications information. I hope, in the light of that explanation, that my noble friend will feel able to withdraw the amendment.

Lord Whitty: I accept some of that and perhaps the moment of notification is a bit early to start distinguishing, but somewhere in this process we do have to distinguish why people are engaged in multiple file-sharing. The consequences, for somebody who is doing it for money will, as the Minister rightly says, be potentially different. This does not say that you have to distinguish, for everybody, beyond doubt that money is involved, but if there is, as part of the knowledge of the copyright holder, an assertion that money is involved, we might as well get it on the record as early in the process as possible. That is all that Amendment 26 is doing.
	When we come on to the next stages, it seems rather more necessary that we know before we engage in the technical measures sanctions, or indeed, put it into the criminal system, as my noble friend the Minister implied. While it may not be absolutely necessary to know at this point, it will be necessary and helpful to know at some point whether they are involved, not simply in depriving the copyright owner of money, but actually making money for themselves. That distinction will have to feed through to the sanctions regime, but for the moment, I beg leave to withdraw the amendment.
	Amendment 26 withdrawn.
	Amendment 27
	 Moved by Lord Young of Norwood Green
	27: Clause 4, page 6, line 38, at end insert-
	"( ) For the purposes of subsection (5)(f) the provider must take into account the suitability of different protection for subscribers in different circumstances."
	Amendment 27 agreed.
	Amendment 28 not moved.
	Amendment 29
	 Moved by Lord Young of Norwood Green
	29: Clause 4, page 6, line 40, leave out from second "particular" to "of" in line 7 on page 7 and insert "-
	(a) a statement that information about the apparent infringement may be kept by the internet service provider;
	(b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber;
	(c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement;
	(d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number"
	Amendment 29 agreed.
	Clause 5 : Obligation to provide infringement lists to copyright owners
	Amendment 30
	 Moved by Lord Young of Norwood Green
	30: Clause 5, page 7, leave out lines 29 to 33 and insert "and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code."

Lord Young of Norwood Green: I intend to speak to the six amendments tabled by my noble friend Lord Mandelson which deal with the thresholds set by the code. I shall also speak to Amendments 36, 37 and 40, tabled by the noble Lords, Lord Razzall, Lord Clement-Jones and Lord Whitty, and the noble Baroness, Lady Miller, which also address the thresholds that apply in Clause 6.
	Perhaps the most important of the amendments laid by the Government in this group has the effect of removing the text that caused some concern to noble Lords during both Second Reading and Committee. The concern was about whether it was fair or reasonable to require internet service providers to process copyright infringement reports that accrued to them during the qualifying period-in other words, before they were formally subject to the obligations. Internet service providers put forward the scenario of being obliged to spend significant sums just in case, at some time, the obligations did apply to them. This would in many cases be likely to be wasted money. Clearly that is not in anyone's interests, and the amendments allow for the obligations to apply from when the qualifying threshold is reached, or from a later date.
	The other amendments in this group are largely intended to clarify the position regarding thresholds, including how the thresholds for going on the copyright infringement list might be constructed-for example, allowing for time as well as simply the numbers of copyright infringement reports to be taken into account when looking at thresholds for adding subscribers to a copyright infringement list. These amendments are again in response to the concerns expressed during our deliberations in Committee, and I hope that noble Lords will agree that they address one unintended consequence and provide greater clarity elsewhere without hindering the important flexibility that the code provides in setting the thresholds themselves.
	Amendment 36 was tabled by the noble Lords, Lord Razzall and Lord Clement-Jones. I understand their intention of ensuring that the level of infringement detected on an internet service provider's network must be serious before it becomes subject to the obligations in the Bill. It remains our view that the code is the right place for the threshold to be established. I believe that we can rely on the parties with the most interest in getting this right and on Ofcom, as an experienced regulator, to agree a suitable threshold.
	That is also our view of the amendment tabled by the noble Baroness, Lady Miller, and my noble friend Lord Whitty. I do not think that we would be at all wise to include specific figures for any threshold in the Bill; that is for the code. In passing, I would say that if a threshold of 50 is included, there might be few internet service providers left outside the scope. Whether that is desirable and effective I am content to leave to the code.
	Finally, the noble Lords, Lord Razzall and Lord Clement-Jones, suggested that once the threshold has been reached a reasonable time should be allowed for internet service providers to prepare. I agree that this needs to be part of the practical arrangements. Your Lordships will therefore not be completely surprised when I suggest that this sort of practical detail is best left to the code. The outline that we made available in Committee included that eventuality. In trying to put more flesh on the bones of what the code may look like, we think it important that, while not taking away flexibility, we provide a period of consultation for stakeholders to decide the make-up the code.
	I am sure that noble Lords noted that Amendment 39 allows that internet service providers comply with the obligations once they have passed the threshold or at a later time. This was included specifically to cater for the likely but not certain need of many internet service providers to make the necessary preparations. We took into account many of the comments and concerns expressed in previous debates and they have been reflected in the government amendments. In the light of those comments, I hope that noble Lords will not press their amendments. In the mean time, I beg to move.

Lord Clement-Jones: My Lords, I assume that the Minister will respond formally later. However, he has saved me having to make a long speech, or indeed much of a speech at all. I thank him for responding to Amendments 36 and 40 essentially in the same terms. He said that rather keep it in the Bill, it should be in the code. One needs to consider the impact of that. It will not be quite as powerful, particularly in terms of Amendment 40, which gives internet service providers a reasonable time, because there are two ways in which these codes can be made. They are either made by consent or imposed by Ofcom. Perhaps the Minister is saying that if Amendment 40 is not included in the code by agreement between the parties, it will be imposed by Ofcom. That is the only way in which something that the Minister assures us will be in the code, but which is not specified in the Bill, is in the code. In a sense, one is taking it somewhat on trust. However, at this stage of the proceedings, and given the Minister's assurances, I shall take the matter away and consider his response to Amendments 36 and 40.

The Earl of Erroll: My Lords, I speak to Amendment 40. It is not my amendment, but I think that it should be included in the Bill to some degree. I welcome the Minister's amendments, which are a very good idea, but the extra moderation shown in Amendment 40 is also worthy of consideration. When one thinks of how much difficulty the Government sometimes have in implementing new computer and software systems, one realises that a reasonable amount of time should certainly be allowed. Choosing it arbitrarily could be dangerous, and we should probably have that in the Bill.

Lord Whitty: My Lords, I will not pursue my amendment for the reasons that the Minister referred to-namely the unintended consequences for smaller ISPs. I was certainly not intending to drive them out of business. One needs to devise a trigger, and it would be better if the trigger were overt and in the Bill. On reflection, however, I do not think that my amendment achieves that. Therefore, before my noble friend replies, I should say that I will not press it.

Lord Young of Norwood Green: My Lords, I tried to cover the amendments in my opening remarks. I therefore commend the amendment to the House.
	Amendment 30 agreed.
	Amendment 31 not moved.
	Amendment 32
	 Moved by Lord Lucas
	32: After Clause 5, insert the following new Clause-
	"Obligations of OFCOM in respect of subscribers etc.
	After section 124BA of the Communications Act 2003 insert-
	"124BB Obligations of OFCOM in respect of subscribers etc.
	(1) Before any notifications are sent to subscribers under the terms of section 124A, and thereafter as required, OFCOM must publish its views on-
	(a) the precautions that should be taken by a subscriber who uses a computer or operates a network to which others (actually or potentially) have access in order to reasonably ensure that their computers and networks are not used to infringe copyright;
	(b) the ways in which a subscriber who receives a notification under section 124A(4) may seek to demonstrate that-
	(i) he had at the relevant time put in place precautions equivalent to those published under paragraph (a), and
	(ii) no computer used by him had contained-
	(a) the copyright material complained of, or
	(b) a program capable of making that material available over the internet.
	(2) When OFCOM publishes views under subsection (1)(a) or (b) they must include the names of (as the case may be) software or websites that an ordinary person might reasonably be expected to make use of to achieve the objectives referred to in those subsections.""

Lord Lucas: All I need the Government to say in response to this amendment is, "Yes, customers will be given precise instructions on what to do and will not be left to guesswork, to divination or to going on to Google to find out what might possibly work".
	There are two aspects to this amendment. The first deals with the precautions that a customer will be asked to take. If the Minister has looked at the latest Which? Computing, he will see that domestic routers are reviewed-and, indeed, that the model that I have is found to be fundamentally insecure, as is the model that I had previously. I bought mine at PC World, as it was one of the nicest looking ones around and did everything that was required of it. The only one that came out as totally secure was the BT router, which you cannot buy unless you have a BT account-which I do not, at least not in the relevant place.
	Being told that these particular brands of router will do what you want to do, and that this is what you do, is better than just being told, "Go and buy a router that complies", without leaving it absolutely clear which those are. Most people who are subject to these things will not feel technically confident and will need precise instructions. That especially applies to people who want to know how to defend themselves against an accusation. I have lived the past 40 years with computers of one form or another, and I would not know how to defend myself against an accusation that I had file-shared. How would I get proof? To give somebody a kit that they can use is going to be essential. I beg to move.

Lord Whitty: My Lords, I strongly support this amendment; to some extent it features in the next group of amendments which are tabled in my name. It seems to me that every subscriber needs to know what is expected of them to avoid the effects of infringement, and it behoves the code to lay down in clear terms what is expected of a subscriber at their address. I hope that the Government take the issue seriously and will take the noble Lord's amendment on board.

Lord Howard of Rising: We on these Benches support my noble friend's amendment. I shall resist asking him what a good-looking router looks like.

The Earl of Erroll: I also support the amendment. It is important that people can know where they stand. That is the challenge. The internet is very new and many people are very new to it and are in the unknown. The noble Lord, Lord Maxton, explained why he did not know whether he was downloading the right stuff. On top of that, how does he know that he has got the right kit? This is a very sensible amendment.

Lord Young of Norwood Green: My Lords, the intention behind the proposed new clause is clear and easy to sympathise with: to give subscribers more information and hence protection. However, it attempts to do so by placing new obligations on Ofcom in areas in which Ofcom does not have the necessary expertise or experience. In doing so, it would actually reduce the level of subscriber protection. I will say why.
	We agree that advice should be made available to subscribers on how to secure their networks, but the best people to give it are the ISPs, which can advise on what works best on their network, using their hardware, and on the type of service that they provide. I stress that we are introducing an amendment to the Bill that requires that they do so under the code. Any advice from Ofcom would be second best. However, it will be up to the appeals body, the First-tier Tribunal, or indeed a court, to decide what precautions or evidence may or may not be appropriate. In a lot of the information that we have sent out, we have said what we think would be a reasonable defence for people adopting security measures. I will have to come back to the noble Lord, Lord Lucas, on the question of security on routers and so on; I do not feel capable of giving an answer here.
	The danger in Ofcom setting out its views on what measures are "reasonable" or what evidence might be produced is that these could become the de facto minimum for subscribers, regardless of circumstance or effectiveness. The level of technical expertise that is required-for example, to demonstrate that at no time did the subscriber's computer have the necessary software to allow infringement-is fairly high and expensive, although it is easy to envisage circumstances in which this would be totally unnecessary. In such a fast-changing area, any centrally provided advice that tried to cover all eventualities could very quickly date. Conversely, a court or tribunal might simply take the view that the measures were unnecessary or inadequate and not take them into account.
	We agree with the intent behind these amendments, but, as I have explained, we feel strongly that they are not necessary and that, for once, Ofcom is not best placed to provide the advice.
	There are a number of reliable and credible sources of advice on protecting networks on computers outside the ISPs, such as www.getsafeonline.org, which provides independent advice on how to protect networks and is supported by government, Ofcom, the police and industry. Organisations such as Which? also review widely available security products. I will still take away the point made by the noble Lord, Lord Lucas, about routers, which apparently are not secure. He asked whether software programs could in any way be downloaded to make them secure. I do not know.
	We understand exactly and sympathise with where the noble Lord, Lord Lucas, is coming from, but we do not believe that this is the right way to proceed. We believe that the ISPs and other sources will be better placed to give this kind of advice, and I hope that in the light of my comments the noble Lord will feel able to withdraw the amendment.

The Earl of Erroll: Does this mean that the Government will put www.getsafeonline.org on to a properly funded footing? It is being run on a bit of a shoestring at the moment.

Lord Young of Norwood Green: I will write to the noble Earl on that question. I do not feel capable of replying to it here.

Lord Lucas: My Lords, I think we will have to see what happens. I really do think that if consumers end up without very clear advice on what to do, we will end up with a lot of unhappiness and a lot of mess, so I urge the Government to ensure that, whichever way they do this, the consumer who finds that something is or might be going on that they want to prevent can prevent it in a way that leaves them certain that they have done the right thing and that they will no longer be at risk. I beg leave to withdraw the amendment.
	Amendment 32 withdrawn.
	Clause 6 : Approval of code about the initial obligations
	Amendment 33
	 Moved by Lord Whitty
	33: Clause 6, page 8, line 3, leave out "may" and insert "must"

Lord Whitty: My Lords, I will speak also to the other amendments in this group. Amendment 33 is pretty straightforward-it just requires the code to cover the subsequent stipulations, rather than have a form of words based on "may". Amendment 35 partly overlaps with some of the territory that the recent amendment of the noble Lord, Lord Lucas, covered. However, it also covers the wider issues that were raised during the Committee stage.
	It seems that the code needs to specify a number of things in relation to those bodies and organisations that feel they have particular problems with the operation of the regime that this Bill requires. In particular, we have had very substantial representations from libraries and educational establishments. The Minister helpfully provided a factsheet on how this would impact on libraries in particular. The factsheet is helpful, but it indicates that there is a very wide range of issues, and clarity of advice is not very easily available, depending on the nature of the systems that are operating in the libraries and the protocols under which they operate, and the other public institutions with which they liaise and share information. It is not therefore that straightforward, even for libraries.
	I suggest that those non-profit-making bodies and educational establishments ought not to be subject to the same sanctions, and therefore the same warning procedure, that is implied for other people. That does not mean that they are not covered, and that copyright is not protected in relation to such institutions, but it does mean that separate protocols will have to be developed, in order that those bodies that effectively exist in order to provide for multiple users, in educational establishments and elsewhere, at no profit to themselves, can have some separate arrangement. That will probably be negotiated with the rights holders and will protect their position, while at the same time giving some return to the rights holders. They are not in the same position as either individuals or commercial businesses who are engaged in unlawful file-sharing. They are in a position where they are trying to do what I was emphasising in an earlier stage in this debate; that is, to spread the availability of information and of creative works on the internet to a wider range of people. That is the function of educational establishments and libraries-that is their job-and we therefore need to make special provision for them.
	At this stage in the evening, I will not say much about those other organisations that are commercial, but which also exist primarily to give access to other people: cybercafés and hotels-which the noble Lord, Lord Howard, referred to-where again, some form of fair use provision needs to be built in. Again, they are not in the same category as individual users or individual businesses.
	The final phrase of Amendment 35 relates exactly to the territory that the noble Lord, Lord Lucas, was referring to-namely that all users, all subscribers, need to have greater clarity about the precautions they are expected to take.
	Amendment 76, which is also in this group, follows that through, so that where, in the later stages, under Clause 10 and onwards, a relevant subscriber has taken precautions, that shall be deemed "reasonable steps" under the formulation, and will provide the subscriber with a prima facie defence against sanctions at that later stage. I am not trying to do it in quite the same way as the noble Lord, Lord Lucas, and it may be that technically his way is better. However, the Government have already rejected that, so I am coming back to that fourth paragraph in Amendment 35, followed through in Amendment 76, to ensure that the code and the regulations under that code and the procedure will allow those who have taken reasonable precautions to escape the sanctions at the end of the day. That seems to me only sensible and equitable, and would of course apply in a court of law. Since at the moment this procedure is not going through a court of law-which I regret, but nevertheless it is not-then surely the same terms should apply.
	This is a hotchpotch of amendments, and we have covered a number of different subjects all together, but I should like to hear the Government's position on making special provision for libraries and education establishments; on commercial operations which exist to share; and, if not tonight then at a later stage, on what precautions are "reasonable steps". I beg to move.

Lord Clement-Jones: My Lords, the concerns expressed in the amendment tabled by myself and my noble friend Lord Razzall are very similar to those in the amendment of the noble Lord, Lord Whitty, except they are perhaps more defined in terms of libraries or educational or cultural establishments.
	We had a good debate in Committee, but there was great sense of disappointment, I think, that libraries and universities were classified for the purposes of the code simply as subscribers. Such classification will make them migrate away from what might be thought as being their ordinary course of duty as a cultural or educational establishment towards becoming ISPs themselves. Ironically, they may have rather fewer duties as an ISP than as a subscriber. That would be a regrettable step, because one is forcing them into a situation which would not otherwise occur if there were satisfactory exemptions for them.
	However, I accept that the Minister has within the constraints of the definitions that he has provided tried to be helpful. A paragraph in the note that he has sent noble Lords states:
	"There is the potential for the code to offer some flexibility and reflect the particular positions of libraries and the like. Ofcom will consult on the code in due course".
	That libraries with fixed terminals are rather different from universities with wi-fi was explained in some detail in the factsheet that the Government have put forward. Nevertheless, the defences need to be set out very clearly in the codes, and we are not there yet. We have therefore brought back Amendment 34 to see whether the Government can make a slightly better fist of being clear about the way in which the code will work and the defences that are available.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for the communication that he sent us about universities. Universities are relatively easy organisations to address, because they have a student body which can sign up to something. Similarly, in libraries, as you take out your library user card, you can be asked to sign up. However, we have not yet got to the bottom of what will happen to municipal places-the towns, for example-that choose to offer wi-fi. I am sad that the Government have not chosen to introduce a clause stating what category educational establishments or commercial establishments such as internet cafés, or indeed municipal facilities and wi-fi towns such as Swindon, would fall into. The vision set out by the Government in Digital Britain was of a place where local government provided wi-fi; it was creating opportunities for the citizen.
	Not having a more enabling clause in this Bill that recognises how to get round some of the difficulties without making life difficult for those organisations and local governments who are being innovative seems to be a big loss. The Minister, I am sure, will be aware of the town in the USA-I believe in Ohio-which was offering wi-fi. It had a great difficulty because it was said that someone who had accessed the internet through the wi-fi had infringed copyright and the whole wi-fi network was threatened with closure. I do not know what happened in that case, but it would be a great shame if just at the point where we are getting more widespread opportunity to access wi-fi through municipal provision, it was caught by this Bill.
	Establishments such as libraries and universities would benefit from a special clause, but I would be very grateful if the Minister could make a particular comment on municipal wi-fi.

The Earl of Erroll: My Lords, as I said before, I have a vision of the future where we can roam around the place, connecting freely wherever you are and working from wherever you need to work. If for some reason-such as transport difficulties, heavy snow or a terrorist threat-you cannot get into work, you can work from some other access point that you happen to get to. You may get halfway there and then log in. That flexible, free and mobile future is, I think, where the world is going. I think it would be very sad if Britain, because of one particular challenge and problem which we need to solve, constrains itself in such a way that we lose that flexibility and end up with a whole lot of tied points, huge complexity and a lot of regulation preventing people doing anything. I envisage a nice, free world, not a world where we are heavily constrained, so therefore I very much support Amendment 35 and hope the Government will look at it very closely.

Lord Young of Norwood Green: My Lords, I will speak to Amendments 33, 34, 35 and 76 together. As noble Lords will recall, the issue of libraries, universities and other establishments was the subject of much debate in Committee. We recognised the concerns raised and I wrote to the noble Lords who participated in last week's debate.
	I therefore entirely appreciate the intention behind these amendments. No one wants to see libraries or universities the subject of court action or technical measures if-I stress this-they are ever introduced. There is no question of them being some sort of quick sanction which cuts off those services. No one wants to see legitimate businesses suffer as a consequence of the actions of their customers but, equally, it cannot be right that they are totally excluded from the provisions of the Bill. My noble friend Lord Puttnam, with his background in universities, recognised that essential point eloquently during our debate in Committee. It is better that the code recognises different circumstances; that is what the Government's amendments provide. Such an exclusion would, I believe, be counterproductive. It is important to remember that libraries and universities can and do ensure that their systems are used for the purposes for which they were already designed. After all, it does not help a university to have a lot of unlawful file-sharing going on when it needs the bandwidth for legitimate file-sharing of research data. They sit on infringement pretty hard when they detect it, and install systems to deter illegitimate use of what is, after all, a finite resource.
	Libraries also take proportionate and reasonable measures on both fixed and wireless connections. All library services should have a conditions of use policy to which users have to agree before getting access to the network. For example, no unlawful activity, including copyright infringement, is permitted. The policy usually stipulates that legal liability for unlawful activities sits with the individual, not the library. There are measures that can be placed on wireless networks to either restrict access to sites or restrict use of certain technologies or protocols-for example, routing all traffic through a proxy server that did not support the use of particular technologies.
	The Government recognised in Committee that more clarification on these issues was needed. We set out in the amendment that we discussed earlier today that more information should be made available to all types of subscribers on how to safeguard their connections. We proposed a new clause on subscriber appeals, which sets out that if the subscriber was not responsible for the infringement and-I stress-had taken reasonable steps to prevent others from infringing, the appeals body should rule in favour of the subscriber.
	The amendment tabled by the noble Lord, Lord Whitty, and the noble Baroness, Lady Miller, would go further by requiring that steps that the subscriber could rely on taking should be set out in the initial obligations code. This is just not practicable. The code would be a relatively static document made by statutory instrument. The steps that might be appropriate to protect an internet connection could well change over time as new techniques are developed and may be different for different types of subscriber or different types of network.
	We absolutely agree that subscribers should have some guidance on what steps can be taken, which is the reason for Amendments 25 and 27 in the name of my noble friend Lord Mandelson, which we have already discussed. These will require ISPs to provide such information as part of a notification and to take into account the suitability of different protection for subscribers in different circumstances. We do not think that it is possible to make following these steps a sufficient defence precisely because different steps may be appropriate for different subscribers. However, I would certainly expect the appeals body to regard evidence that the subscriber had followed steps recommended by their ISP as very strong evidence of having taken reasonable steps.
	Finally, Amendment 33 would make the inclusion in the code of a provision for dealing with exceptional cases mandatory rather than something that, under the Bill, may be included. I do not think that making such a change is necessary. Of course it is important that the code should be flexible enough to deal with particular cases that do not necessarily conform to the usual pattern. That is why subsection (3) is there. It expressly recognises the need, and the actions that will be required of internet service suppliers and copyright owners, to ensure that any such conditions for dealing with cases of that sort are met. However, I see no reason for requiring such a provision before it is evident that there are such cases. Insisting on such a provision in these circumstances would be a complete waste of time. I suggest that the potential issue of dealing with particular cases effectively needs to be provided for; the current text does that. Making it a requirement for the code may be a wasted effort. In the light of that, I hope that the noble Lord can see his way to withdrawing the amendment.
	I stress that it is our intention that the code should require ISPs to provide generic advice and information on how to tackle infringement as well as on how to protect a wireless connection/network and that such advice is appropriate for the type of establishment in question. We will add a requirement under Clause 8 that this is a provision that the code must include. I hope that that gives some reassurance.
	In response to the noble Baroness, Lady Miller, we gave an example of a case study on urban wi-fi-the Swindon example. I can tell the noble Earl, Lord Erroll, that it is not our intention to stifle initiatives, but we believe that appropriate measures can be taken in all these circumstances. It is quite complicated but, given the time, I do not want to read out the Swindon case study, as it would not be appropriate. However, we believe that a type of free or coffee-shop access of a basic bandwidth service that offered users access to e-mail and web browsing would be unlikely to be the type of free broadband service that would be sufficient to support any file-sharing or that could be used for significant copyright infringement. The Swindon example is a two-tier service. One part of it is a restricted bandwidth, so it is unlikely that it could be used to engage in peer-to-peer activity. There is another paid-for subscription service where that might be possible, but I am sure that there will be conditions of use.
	I commend the factsheet. I would not say that it answers every question but it goes a long way towards addressing these issues. We have tried to make sure that there will be some requirements-things that the code must include. We believe that, in a situation where the technology changes frequently, we can meet the genuine concerns expressed. We have tried to strike a balance so that organisations such as universities, libraries and hotels have the ability to offer a service but are not exempt from taking the necessary measures and will not fall foul unreasonably, provided that they show that they have taken the necessary precautions. I hope that, in the light of the published information and my explanation, the noble Lord will feel able to withdraw the amendment.

Lord Whitty: My Lords, I am reassured on several points by my noble friend's reply, particularly in relation to how precautions will be separately set out for different circumstances, and I would hope that that was clear in the coda. I accept that obviously you cannot cover every contingency. It is however important that the main classes of user understand what is required of them, and how the process will apply to them. This will be different, depending on the technology within those sub-classes. I was intending with Amendment 35 to go a little bit further than that; namely that the particular circumstances of libraries, and probably the particular circumstances of some hotels and cafes and so on, somehow need to be recognised as well.
	Giving multiple access is part of their service. This goes to a rather more fundamental question of whether we should be legislating for fair use, but it seems to me that there could be particular provisions-deals done-with the ISP, or direct with the rights-holders, which recognise the particular circumstances of those who are providing multiple-use access. I will not pursue that any further tonight, but once this comes to be implemented, we will very rapidly see-as those industries themselves have warned us-that there will be impracticalities in their area if they are treated in the same way as any other subscriber. We have had approaches not only from libraries and colleges, but also from hotels and others who will need to be reassured on this point.
	The Minister will be gratified to hear that I will not go any further tonight. I beg leave to withdraw the amendment, and I thank the Minister for spelling that out in such detail.
	Amendment 33 withdrawn.
	Amendments 34 to 37 not moved.
	Amendment 38
	 Moved by Lord Young of Norwood Green
	38: Clause 6, page 8, line 25, leave out "out"
	Amendment 38 agreed.

Lord Haskel: I remind the Committee that if Amendment 39 is agreed, I cannot call Amendment 40 because of pre-emption.
	Amendment 39
	 Moved by Lord Young of Norwood Green
	39: Clause 6, page 8, leave out lines 27 and 28 and insert-
	"( ) if the threshold is reached, rights or obligations apply with effect from the date when it is reached or from a later time"
	Amendment 39 agreed.
	Amendment 40 not moved.
	Amendment 41
	 Moved by Lord Howard of Rising
	41: Clause 6, page 8, line 29, after "unless" insert-
	"(a) "

Lord Howard of Rising: My Lords, the amendments in this group relate to a concern that many noble Lords raised in Committee: that these provisions might lead to information that a subscriber may reasonably expect to be kept private being disseminated among many different bodies. The Minister has tried to reassure the House that ISPs and copyright owners will be expected to meet a high standard when setting up the databases and transferring information between them at the appropriate stage. As with so much in this Bill, however, it will not be possible to tell the value of these reassurances until the system has been established. It will provide considerable reassurances for subscribers, and indeed ISPs, which are likely to bear the brunt of consumer anger if these standards are not maintained, if the code were to be approved by the appropriate person-the Information Commissioner. I beg to move.

Lord Young of Norwood Green: My Lords, these amendments are, on the face of it, reasonable and it is easy to understand and appreciate the intent behind them. However, they are not necessary and would slow the adoption and approval of the code. A quick summary of the process that the code must go though will help to explain why. Ofcom will have either to develop or approve a code to underpin the initial obligations. It knows that any code must fully comply with existing legislation, including data protection and privacy, before it submits it to the Secretary of State. But before the code gets the Ofcom stamp of approval, it would have been developed with stakeholders and put out to consultation. The Information Commissioner's Office responded to our earlier consultations on online copyright infringement and I would expect it to be similarly involved in the code consultation, if not the code development process itself.
	The code then requires the approval of the Secretary of State before ultimately coming before Parliament for approval. As part of that process we must be sure that it complies with all legislation and not just that concerning data protection or privacy. Therefore, the code will have been developed with stakeholders, have gone through a consultation, had Ofcom approval, and had the Secretary's of State's approval and that of Cabinet colleagues before it reaches Parliament. It is hard to believe that in all that time the important issues of data protection and privacy would not have been fully investigated and checked.
	Finally, I have little doubt that before approving the code the Information Commissioner would want to consider or consult on it, thus elongating the approvals process further. Formally requiring the Information Commissioner to approve the code is not necessary and could add significantly to the time for the approval process. In the light of that explanation on the fullness of the consultation process, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Howard of Rising: I thank the Minister for his helpful remarks. If the Information Commission is going to look at the code en route, I do not suppose that it will take any longer for it to be looked at formally, but there you are. I beg leave to withdraw the amendment.
	Amendment 41 withdrawn.
	Amendments 42 to 44 not moved.
	Clause 7 : Initial obligations code by OFCOM in the absence of an approved code
	Amendment 45
	 Moved by Lord Clement-Jones
	45: Clause 7, page 9, line 12, leave out "may but need not" and insert "must"

Lord Clement-Jones: My Lords, in Committee, the Government moved amendments to make the code that needs to be drawn up by Ofcom, if the stakeholders do not agree among themselves, no longer to have a time limit. Subsection (2)(b) of new Section 124D of the Communications Act 2003, "Initial obligations code by OFCOM in the absence of an approved code", refers to,
	"such longer period as the Secretary of State may specify by notice to OFCOM".
	The Minister was fairly cogent in terms of describing why a longer period was needed in terms of the standstill required by the technical standards directive and the standard Ofcom 12-week consultation period. It would appear that the whole process would take six months and, therefore, it was probably unreasonable to specify that the whole code could be produced within six months.
	However, what appears to be a good argument for having a longer deadline fails to justify what the Government's amendment in Committee did, which was potentially to remove the deadline altogether. That does not appear to be justified. There is considerable concern among some stakeholders involved that this process could be extended unreasonably and could prevent Ofcom getting code discussions moving on the ground that basically there is no longer a time limit. It seems sensible to reintroduce some form of deadline, which this amendment attempts to do. I beg to move.

Lord Young of Norwood Green: My Lords, these two amendments would remove any ability of the Secretary of State to allow Ofcom more time to produce a code. I am not in favour of unnecessary delays or time wasting; I share the concern of the noble Lord, Lord Clement-Jones. I am all in favour of giving Ofcom challenging targets, and our provision is just that-challenging but achievable. However, putting this in legislation means that if Ofcom fails to do so within this period it could be found to be in breach of a statutory duty. If that is due to its failings so be it, but what if this is through no fault of Ofcom's and something which it has no control over? That is another matter.
	As noble Lords may be aware, under European legislation-the technical standards directive-all member states must notify the Commission when they propose to introduce legislation that would affect a business wishing to operate in the UK. This notification process requires that the member state submit the proposal in a near final form, and that the Commission and other member states have a three-month period to consider and comment if they wish. If issues are raised, then the Commission would look into the proposal in more detail. I hate to say the next bit, but this process can take up to 12 months. During that period the notifying member state cannot proceed with the regulation.
	We are certain that the code will need to be notified and we have built this into the eight-month period allowed to Ofcom. We are also fairly confident that after the three-month standstill we would be able to proceed. However, here's the rub: we cannot be sure that it would not be delayed further. It is only in this type of situation that we envisage that the Secretary of State would allow Ofcom an extension. I want to reassure the noble Lord, Lord Clement-Jones, that we share exactly his concern. We have tried to give him an assurance that the only circumstances where the Secretary of State would allow Ofcom an extension would be circumscribed. In light of the explanation I have just given, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Clement-Jones: My Lords, I thank the Minister for that reassurance. It was certainly extremely helpful to have that on the record, in terms of talking about "the only circumstances", and reassuring to know that he shares our concerns about this potential situation where there is no deadline.
	It is too late at this stage to go much further into this. We would have preferred some sort of backstop date rather than just a possibility of it flowing on. However, as the Minister has assured us that there are only certain, very limited circumstances in which that subsection would be invoked, I will bank that assurance for the present. I beg leave to withdraw the amendment.
	Amendment 45 withdrawn.
	Amendment 46 not moved.
	Amendment 47
	 Moved by Lord Young of Norwood Green
	47: Clause 7, page 9, leave out lines 26 to 40 and insert-
	"(a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves;
	(b) provide for OFCOM, in exercising such jurisdiction, to make awards of compensation, to direct the reimbursement of costs, or to do both;
	(c) provide for OFCOM to enforce, or to participate in the enforcement of, any awards or directions made under the code;
	(d) make other provision for the enforcement of such awards and directions;
	(e) establish a body corporate, with the capacity to make its own rules and establish its own procedures, for the purpose of determining subscriber appeals;
	(f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of any awards or directions made by the person;
	(fa) make other provision for the enforcement of such awards and directions; and"

Lord Young of Norwood Green: My Lords, I intend to speak to the seven amendments tabled by the Government that deal with the removal of the option in each code that an independent body or person might administer and enforce it, thereby ensuring that this is a role performed by Ofcom itself. This was something the Committee wished.
	The ability of the code to establish an independent person or body with the powers and duty to administer and enforce the code was considered at some length during Committee stage. The Government's view was that this was a pragmatic approach, giving the regulator the option to delegate the duties and work of ensuring the code worked properly to an independent body. However, a number of noble Lords took a different view, and regarded the possibility of such an independent body being set up as undesirable and lacking in proper accountability.
	Having listened carefully to what was said, the Government have decided that the benefits of pragmatism are in this case outweighed by the assurance and benefits of ensuring that this code, and the technical obligations code, should one be needed, which are so essential to the effective functioning of these provisions, is administered and enforced by Ofcom as the regulator. This does not affect the requirement for an independent appeals body to be set up. I hope that noble Lords regard this as the right thing to do in the light of the debate we had on this matter. On that basis I beg to move.
	Amendment 47 agreed.
	Amendment 48 not moved.
	Clause 8 : Contents of initial obligations code
	Amendments 49 and 50
	 Moved by Lord Young of Norwood Green
	49: Clause 8, page 10, line 18, leave out "subsection (3)" and insert "subsections (3) and (3A)"
	50: Clause 8, page 10, line 18, at end insert-
	"(ba) that it sets the threshold applying for the purposes of determining who is a relevant subscriber within the meaning of section 124B(3) (see subsections (3B) and (3C));"
	Amendments 49 and 50 agreed.
	Amendment 51
	 Moved by Lord Young of Norwood Green
	51: Clause 8, page 10, line 25, leave out "enforcement and related matters" and insert "administration and enforcement"

Lord Young of Norwood Green: My Lords, I rise to move a supergroup of some 19 amendments. These amendments cover the very important area of subscriber appeals, and I am delighted to be able to introduce these proposed changes as a result of the debate that we had in Committee and the many concerns that your Lordships raised about the need for greater clarity and detail in the Bill. The amendments are somewhat complex, and I hope that your Lordships will forgive me if I seek to explain them at perhaps slightly more length than I would want on a single group.
	The changes that we are making in this group do essentially three things. First, we have streamlined the process to ensure that any subscriber appeal should follow a single route to the appeals body and then on to a First-tier Tribunal should technical obligations have been introduced. That means that the dispute resolution mechanism for what is currently called a copyright infringement dispute will be restricted to disputes between copyright owners and ISPs about compliance with the code. We have also renamed these disputes "owner-provider" disputes, which adds clarity and should remove the concerns that many noble Lords expressed about the idea of a "copyright infringement" dispute resolution mechanism.
	Secondly, the amendments provide explicitly that provisions on subscriber appeals should be set out, and complied with, in the code. Finally, and most importantly, the amendments introduce a new clause on subscriber appeals which brings all the provisions on appeals together and introduces a number of new provisions to give more clarity about the rights of subscribers. Specifically, the new clause gives subscribers an explicit right to appeal and requires the establishment of an independent appeals body to be paid for by copyright owners, ISPs and subscribers.
	In response to concerns that your Lordships raised, the new clause provides for the grounds for appeal to include that there was no infringement of copyright, that the report does not relate to the subscriber's IP address and that the copyright owner or ISP contravened a requirement of the code. We listened to what noble Lords said about the burden of proof and this clause makes it clear that in all cases the infringement and the fact that it relates to the subscriber's IP address must be proved and that if that cannot be done to the appeal body's satisfaction then the appeal should succeed. Again, we listened to what noble Lords said about defences and this clause establishes that it will be a sufficient defence for the subscriber to show that they did not carry out the infringement and that they took reasonable steps to prevent other persons from infringing copyright using their internet account.
	In response to a recommendation from the Joint Committee on Human Rights, the clause includes provision for the appeals body to award compensation to a subscriber and to require the subscriber's costs to be paid should an appeal be successful. I believe that this also meets the intention behind Amendment 53 in the names of the noble Lords, Lord Razzall and Lord Clement-Jones. The clause gives the appeals body the power to confirm or reject the application of a technical measure, or to substitute another measure that the ISP has the power to take, and allows it to show leniency where an appeal is not upheld but there are special circumstances.
	The clause includes the provision that was already in the Bill for an appeal against a decision of the appeals body to the first-tier tribunal when technical obligations are in force. Finally, in fulfilment of a commitment that we gave in Committee, it requires that no technical measure should be taken until the appeals process has been exhausted-that is another area of concern.
	I apologise for speaking at some length, but I believe that this is an excellent package of measures, which is very much offered in response to the debates in Committee. I urge your Lordships to support these amendments. I beg to move.

Lord Clement-Jones: My Lords, again, I think that it would be churlish not to rise, even at this time of night, to thank the Minister. There are many aspects, particularly relating to subscriber appeals, which are very much to be welcomed and which the Minister is now proposing to or has already put on the face of the Bill. I think that we have every reason to thank the Minister for listening in Committee and for improving the Bill and its procedures.

Lord Whitty: My Lords, I am afraid that I cannot entirely join in the acclaim for these clauses. The Minister has clearly received some good tactical advice from his office or the business managers, in that Amendment 51 deals with Clause 8 but the group actually goes up to-we are just entering the second stage, but are not really there until Clause 10-Amendment 100, which relates to the clause after Clause 13. I was not wide awake enough to object to this in terms of the grouping. I would not like to accuse my noble friend of sharp practice, but this is quite clever, as it means that some of the central issues, which I was hoping to debate in relation to Clause 13, are now being dealt with tonight.
	I am happy with a lot of the provisions, even in Amendment 100, which relates to the body dealing with appeals against the process that the notification has gone through. What I am not at all happy with is the whole provision post Clause 13, which allows the appeals body, rather than a court, to impose sanctions. I have a fundamental opposition to this and will have to return to it in some other way-I hope that I can get equally good tactical advice as to how to do it on this Bill. My fundamental opposition to this has perhaps made me sharper in my criticism of earlier parts of the Bill than the Minister thought appropriate.
	At the end of the day, this is where we end up-with an administrative process that denies the subscriber who has been accused of an infringement the right to due process and the right to go to court. In all other cases where breach of copyright is alleged, access to the court on the part of the defendant is always available. This is a new move, which raises fundamental issues. I will not go on about it any further tonight, but I will return to the matter. I need not deal with the amendments that I have put down in detail tonight-they are intended to be helpful in the earlier part-but when we come to the latter stages and the imposition of the sanctions, I shall remain pretty implacably opposed to this. It will act to the detriment not only of consumers, but also ultimately of the rights-holder industry. We ought to find another way. My latter amendments would delete the reference to the appeals body having the ability to impose those sanctions.
	I regret that we are not going to get a sensible debate on this tonight-despite the quality of the personnel still here-but we may have to return to it. It will certainly be a matter of debate in another place.

Lord Lucas: My Lords, I thank the noble Lord and his team for all the effort that they have put into these amendments. It is definitely an advance, although I share the fundamental feeling of the noble Lord, Lord Whitty, that I would rather see this done by due process. Perhaps he should follow the latest advice on how to work out one's frustration with the process of government, which apparently is to stab the upholstery with a felt-tip pen. I do not know how well that would go down here, but there is a lot of good upholstery.

Baroness Miller of Chilthorne Domer: My Lords, I share the misgivings of the noble Lord, Lord Whitty, on this. One of the reasons that we have managed not to challenge the Government more on this matter, and that the departments which have introduced the Bill remain rather implacable about it, is that they are not the Ministry of Justice. In an era when the Government claim to be joined up, it is astonishing that the Department for Business, Innovation and Skills and the Department for Culture, Media and Sport are driving this through against the interests of the citizen and in the interests of industry. It is right that those departments should represent the interests of industry, but where is the representation from the other departments which are meant to be batting in the interests of the citizen?

Lord Young of Norwood Green: My Lords, it would be an interesting debate to look holistically at what is in the interests of citizens overall. Should we reward creative rights in industry? I believe that we should and that that is in the interests of citizens overall. Is this flying in the face of justice, natural or otherwise? No, it is not because it is-as the House has agreed-a very gradual process which does not even introduce technical measures until we have had a year to assess the process and we decide that it is necessary to use them at all. If we get to the point where those sanctions are introduced, there is a First-tier Tribunal, which is a judicial process. We believe that is better than dragging people in front of the courts. I again remind noble Lords that nobody gets there unless they really are serial infringers. We have tried to respond to a number of very important and constructive comments that were made during debates on these issues. We have submitted a range of amendments that I believe have in many cases met genuine concerns, although they may not please everybody.
	Amendment 51 agreed.
	Amendment 52
	 Moved by Lord Faulkner of Worcester
	52: Clause 8, page 10, line 26, at end insert-
	"(fa) that the requirements concerning subscriber appeals are met in relation to the code (see section 124JA);"
	Amendment 52 agreed.
	Amendment 53 not moved.
	Consideration on Report adjourned.

House adjourned at 10.52 pm.